PPACA - Spending Power / Medicaid Expansion
stevenjamar at gmail.com
Fri Feb 3 11:23:21 PST 2012
I think the decision has nothing to do with precedent whatsoever. If five justices don't like it, it goes down - there is ample play in the doctrine to make it seem like it is required to be held unconstitutional. If five conservative justices want to play politics with it, it goes down just to make Obama look bad and increase the chances of him losing in the fall.
Being a bit less cynical, if 5 justices think that the constitution genuinely requires a smaller federal government (that ship has sailed, but who knows), it will go down -- again, they can bend/change doctrine as they wish to make that result.
But, if Scalia genuinely believes his own rhetoric about deference to majoritarian rule and about precedent (and I don't think he does), then it must be upheld and easily.
States can refuse federal funding. The people (national and at the state level) can choose their representatives who will pass such laws and who can choose to accept or decline such funding -- if the state's voters want the state to not take it, they can elect the appropriate government to do just that.
This is a political decision to the core.
On Feb 3, 2012, at 2:02 PM, Conkle, Daniel O. wrote:
> 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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Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
"Whenever you find yourself on the side of the majority, it is time to pause and reflect."
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