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How Much Should We Worry About Poison Pills and Loaded Guns Post-ACA?
Deborah Pearlstein
It’s been striking to read all the commentary (e.g. here, here) lamenting
that the Court’s decision largely to uphold the ACA was accompanied by dicta on
the Commerce Clause and a decision on the Spending Clause that will be used to
weaken federal power in even more destructive ways in the future.I disagree with the Court’s conclusions on
these issues for a host of reasons.But
I’m having a hard time seeing the decision as quite so necessarily damaging on
its own to the future power of the feds.
I’d frame the question as follows.Before the ACA decision, we knew that there were 5 conservative justices
on the Court who had made clear in various ways their views that Congress’
power was limited.There was also
already a set of Supreme Court cases recognizing limits on Congress’ power
under the Commerce Clause (e.g. Lopez, Morrison).And there was a small line of cases (e.g. Steward
Machine; South Dakota v. Dole) suggesting that the federal government should
not be able to assert power over the states through the exercise of coercion,
rather than by direct command or by offering a voluntary choice.True, and important, the Court had not since
1933 found a case it was persuaded amounted to impermissible coercion in the
Spending Clause context. But the
argument has resurfaced in SCt opinions on occasion (like a loaded gun?) ever since. So taking all that as given, how will the ACA opinions
influence the Court, the lower courts, and/or Congress to behave in ways they
wouldn’t have otherwise before the opinions appeared?
Start with the Spending Clause. Justices Roberts, Breyer and Kagan
filed an opinion for 3 concluding that federal conditions on spending could not
be so coercive that “pressure turns into compulsion.”What’s the difference, in their view, between
pressure and compulsion? The Dole
condition on federal highway funds that impacted less than half a percent of
the state budget was pressure; the ACA condition on Medicaid funds that impacted
more than 10% of the state budget was coercion. The Steward Machine federal tax abatement in exchange for a state
enacting unemployment insurance was pressure; federal deprivation of all
funding for health care for the needy was coercion. Much beyond that, the Roberts
opinion allowed, we’ll know coercion when we see it.
The 4 dissenters on this issue go on at length about offers-states-can’t-refuse,
and devote a section’s worth of discussion, echoing Roberts’ opinion, to just
how big a part of state budgets Medicaid really is, in this way expressly distinguishing
it from federal education funding and implicitly from pretty much everything
else. (“Medicaid has long been the largest federal program of grants to the
States. In 2010, the Federal Government directed more than $552 billion in
federal funds to the States. Of this, more than $233 billion went to
pre-expansion Medicaid. This amount equals nearly 22% of all state expenditures
combined. The States devote a larger percentage of their budgets to Medicaid
than to any other item.”) While the plurality and dissent plainly agree on this
point (i.e. size matters), it’s mostly opaque to what extent Roberts et al. share
the dissenters’ other views.It is
clear, however, that even the dissent thinks that the anti-coercion principle is
both a bit mushy and a lot limited: “Whether federal spending legislation
crosses the line from enticement to coercion is often difficult to determine,
and courts should not conclude that legislation is unconstitutional on this
ground unless the coercive nature of an offer is unmistakably clear.”
Will future Supreme Courts feel constrained by these opinions to strike
down spending conditions they wouldn’t otherwise have struck? Hard to see. The
justices spend a large amount of time explaining/ excusing how the ACA
condition is, given the scope of Medicaid alone, unique.And the test they’ve articulated, with a
presumption on Congress’ side and a refusal to draw a clear line between
pressure and coercion, leaves them enormous space to vote as they wish in
future decisions.For similar reasons,
it seems hard to picture a hypothetical case working its way through the lower
courts in which an argument of unconstitutionality on spending clause grounds
is anything like a slam dunk.No other
program is Medicaid.Nothing comes
close.To be sure, litigants opposed to
a federal funding condition now have some opinions (neither garnering 5 votes)
to cite.But they still face an
enormously steep climb to prove their case.Finally, what of Congress? Will it legislate fewer conditions on federal
grants in response to the Court’s opinion? I’m sure legislative staff will give
it some thought. And aim to tailor conditions to be less rather than more
offensive within what parameters it’s possible to discern the opinions
set.But the post-ACA case debate on how
loaded this gun really is seems to break along progressive/conservative lines. And in those political terms, it’s not at all
clear how the Court reserving the power to find some federal conditions on
spending unduly coercive cuts.Congress
has proven itself well able to impose harsh conditions on federal spending that
target what most folks think of as core progressive programs/interests.Who if anyone has a new litigating
weapon?Everyone.
Then there’s the Commerce Clause language which, as I noted before, is
dicta if I’ve ever seen it.Not that I
think this distinction is central to one’s evaluation of its likely impact in the
courts and Congress.It has some
significance for decision-makers in the lower courts.But there are other reasons why I think it’s
altogether unclear this language will change much in future Commerce Clause
debates.As with the Spending Clause arguments,
much of the Commerce Clause reasoning turns on the existence of an activity/inactivity
distinction that seems unlikely to recur in this form. (Indeed, the ACA
plaintiffs as I recall hinged their case on the argument that this mandate was
unique in U.S. history in its regulation of economic “inactivity.”) And even if
it does, because I agree with Justice Ginsburg and many others who find this
distinction untenable, I think it’s an open question how the Court would respond.
The hypo legislation I had my students discuss was a (to reiterate,
hypothetical) statute in which Congress legalizes the purchase, possession,
etc. of marijuana for medical use, provided that all purchases be paid for by
credit card. (One could imagine various rational reasons why Congress would
want to keep cash-only marijuana transactions criminal.) As in the ACA case,
one could insist there are two separate markets: a market in marijuana, and a
separate market in credit cards.And
Congress’ hypothetical statute conditions one’s participation in the former
market on forced participation in the latter. That is, if you wanna buy
marijuana (read health care), you have to first buy a credit card (read health
insurance).Would this Court uphold that
statute?Even after the ACA opinions, my
money is still on yes.Which brings us
back to Congress.Will Congress not pursue
legislation it otherwise would have for fear of running afoul of ACA-driven related
limits on federal power?I could easily
see Congress rewriting statutes, reframing the basis of their power, to
accommodate preferences evident in this opinion.But not legislate in an area at all, for
reason of this case alone? I’d be interested in the argument that we will see
legislative chilling of such a scope.