an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Gov. Rick Perry, raising the specter of a showdown with the Obama administration, suggested Thursday that he would consider invoking states’ rights protections under the 10th Amendment to resist the president’s healthcare plan, which he said would be "disastrous" for Texas.
Interviewed by conservative talk show host Mark Davis of Dallas’ WBAP/820 AM, Perry said his first hope is that Congress will defeat the plan, which both Perry and Davis described as "Obama Care." But should it pass, Perry predicted that Texas and a "number" of states might resist the federal health mandate.
"I think you’ll hear states and governors standing up and saying 'no’ to this type of encroachment on the states with their healthcare," Perry said. "So my hope is that we never have to have that stand-up. But I’m certainly willing and ready for the fight if this administration continues to try to force their very expansive government philosophy down our collective throats."
Perry's assertion raises several interesting questions. The first is how, if at all, Texas would refuse to participate. I assume that Texas could not prevent Texas residents from purchasing a national public insurance option. It would not and could not prevent federal law enforcement officials from enforcing federal regulations of private insurers who operate within the state of Texas. Similarly, Texas state officials would not try to close down federal government office buildings in Texas where the health care program is being administered.
So what exactly is Perry threatening to do? There is one possibility that I could think of (there may be several others as well): Perhaps Perry is saying that if the plan expands Medicaid for poor people, he would stop participating in the Medicaid program. Currently all states participate in this federal/state cooperative program. Medicaid currently provides health insurance program for low-income parents (mostly mothers) and children, a long-term care program for the elderly, and funds for services to people with disabilities.
Since Medicaid is a cooperative venture, any state can back out any time it wants. All Perry has to do is take the political heat, which would presumably be pretty intense, given the fact that a large number of mothers, elderly persons and disabled persons in Texas make use of Medicaid programs.
Perhaps more interesting is Perry's theory of why expanded health care programs would be unconstitutional. I can think of two possibilities. Presumably the federal power to create such a program comes from the General Welfare Clause (Article I, section 8, clause 1), which gives the federal government the power to raise taxes and spend money for the general welfare. It's hard to see how the proposed health care program violates the Constitution under existing doctrine.
Perry might claim that no state can willingly consent to participate in federal programs of the type contemplated. But that argument would probably make many other state cooperative ventures unconstitutional, including Social Security and Medicare.
Second, Perry might argue that although the federal government can spend money on some social welfare programs, after a certain point, federal expenditures become so intrusive that they dominate the regulatory playing field, effectively preventing states from creating their own independent programs and therefore this violates the Tenth Amendment. This argument seems a bit of a stretch, but if we took it seriously, it would threaten the constitutionality of a lot of federal programs, including federal grants that Texas depends on and that Texas citizens desperately need. Perry has been more than happy to take federal money for any number of federal health care programs in the past. It is not clear whether he has had a change of heart about their constitutionality as well.
Note, finally, that Perry's argument is not necessarily that a court would hold the health plan unconstitutional. (It won't: There is little doubt that if Perry were to challenge the constitutionality of the health care plan in the federal courts, he would lose under current doctrine.). Rather, he is arguing that, as governor of Texas, he is an independent interpreter of the Constitution, and he is taking steps consistent with his interpretation of the Constitution that are otherwise permissible under the law. As long as Perry doesn't violate federal laws or interfere with federal employees, he is presumably free to make decisions based on his personal interpretation of the Constitution. His accountability for those decisions rests with the people of Texas. No doubt Perry thinks this sort of tough anti-federal government rhetoric will win him votes. But once it becomes clear what his threatened actions will cost the state and its people, I doubt the citizens of Texas will be as supportive as he thinks. Posted
by JB [link]