Balkinization  

Monday, July 02, 2012

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.  

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