From Marty Lederman’s Mouth to God’s Ears

Georgetown lawprof Martin Lederman had this to say about the undue coercion challenge to the Medicaid expansion back in March:

It is one thing to suggest—as litigants in many past Spending Clause cases have—that Congress may not use the lure of its valuable funding to “coerce” the States to spend their own funds outside the federal program, or regulate their own citizens, in a way that Congress could not insist upon directly. The Court has always rejected such arguments, and for good reason. But at least such arguments make some logical sense, as an analogy to the “unconstitutional conditions” doctrine in cases where the government imposes conditions on private individuals’ receipt of benefits.

Here, by contrast, the thing the States are allegedly being “coerced” to do is to spend federal dollars to benefit the States’ own citizens in the manner that Congress has chosen. It’s all carrots, and no stick. What the States’ argument thus amounts to is, in effect, a claim that each State should be able to pick and choose among the terms on which federal dollars are to be expended. Acceptance of that argument would upend the basic terms on which Congress has long exercised its Spending authority.

I disagree with Lederman’s characterization of the argument, but I hope he is right about the decision upending the way Congress exercises its spending power. As I noted back in March in a separate discussion of the Medicaid issue,

these sorts of programs are among the worst the federal government has to offer, not necessarily because of their substance but because they undermine political accountability. The states get money from the federal government, with strings attached. Congress is happy, because it gets to spend more money, and state and local officials are happy because they can claim credit for spending the money without being accountable for raising it. But local citizens who are unhappy with the relevant “strings” have no recourse to their local government, because the locals are just following orders from the feds. It’s the worst of all worlds and a great example of a very dysfunctional version of federalism–Congressional overspending, centralized rules from agencies in Washington, D.C., and no accountability at the level where the money is spent and the rules implemented.

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