PPACA - Spending Power / Medicaid Expansion

Conkle, Daniel O. conkle at indiana.edu
Fri Feb 3 11:02:36 PST 2012

Having just taught the 11th Circuit's decision approving the PPACA's expansion of Medicaid, I'm finding, contrary to my initial inclination, that maybe the spending power issue is not as easy (in favor of congressional power) as I thought.  In Dole, South Dakota was threatened with a loss of *5%* of the state's federal highway money, which the Supreme Court found to be a relatively small financial inducement that did not rise to the level of impermissible coercion.  Under the PPACA, by contrast, the states *might* face a loss of *all* their federal Medicaid money if they fail to expand Medicaid in accordance with the congressional directive.

In rejecting the 10th Amendment/state sovereignty challenge, the 11th Circuit cites various factors, one of which is that non-complying states *might not* face a loss of *all* their federal Medicaid dollars, because the Medicaid Act gives HH&S the discretion to cut off only a part of the funding if the department so elects.  But I'm not sure how much this helps the argument in favor of federal power, because the lack of certainty in itself would seem to impair a state's informed decision-making concerning whether or not it wishes to comply with the federal directive.  Cf. Dole's requirement that funding conditions be clearly stated in the federal law.

Perhaps the 11th Circuit's other factors are enough to tip the balance in favor of Congress, or perhaps the spending power should not be checked by the judiciary at all.  But I'm beginning to think that the states might have a shot at winning on this.

I'd be interested in other perspectives.

Dan Conkle
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu

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