The constitutionality of Spending Clause legislation after the Supreme Court’s health care ruling

by Brian Wolfman

A good bit of important congressional legislation is justified under the Constitution's so-called Spending Clause. Key programs in the environmental, education, and public benefits areas, for instance, are Spending Clause programs. The idea of much of this legislation, put simply, is that the legislation offers money to states to implement joint federal-state programs, and, if a state decides to participate, it is bound to conditions imposed by legislation if those conditions are clearly expressed in the legislation's text.

But there are limits to the Spending Clause power beyond the clarity requirement. Coercion of a state is also unacceptable. In its recent health care ruling, National Federation of Independent Business v. Sebelius (NFIB),
the Supreme Court held (7-2) that the Affordable Care Act's medicaid
expansion unconsitutionally coerced the states to accept the expansion
and thus offended the Spending Clause. Some
observers think that the Court's Spending Clause holding calls into
question the constitutionality of a fair amount of existing Spending Clause
legislation and takes off the table some federal-state programs that
otherwise might have been enacted in the future.

As we had noted shortly after the Supreme Court's ruling, law professor Sam Bagenstos has taken a fairly narrow view of the ruling. He has now published his views in an article, The Anti-leveraging
Principle and the Spending Clause After
, 101 Geo. L. J. 861 (2013). Here is the abstract:

This Article offers an initial assessment of the Supreme
Court’s Spending Clause holding in National Federation of Independent
Business v. Sebelius (NFIB), which addressed the constitutional
challenge to the Affordable Care Act. As Justice Ginsburg pointed
out, NFIB marks “the first time ever” that the Court
has held that a spending condition unconstitutionally coerced the
states. The implications of that holding are potentially massive, and some
of the language in the decision, if read broadly, would seriously
threaten the constitutionality of a broad swath of federal spending

Notwithstanding some of the Court’s language, this Article contends that
the case is not best read as rendering federal spending conditions
unconstitutional simply because they are attached to large amounts of
federal money, change the terms of participation in entrenched cooperative
programs, or tie together separate programs into a package deal. Rather,
Chief Justice Roberts’s pivotal opinion is best read as adopting an “anti-leveraging
principle” that will find coercion only where all three of these
conditions are present at the same time. The anti-leveraging principle
both makes the most sense of what the Chief Justice actually said
in NFIB and does a better job of accommodating the relevant
constitutional values than do plausible alternative readings of the
case. Although that principle threatens the constitutionality of far fewer
conditional- spending laws than do those alternative readings, it raises
challenging ques- tions about the constitutionality of certain spending
conditions. And it gives states an important new tool in negotiations with
federal administrators.

HT to Constitutional Accountabilty Center

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