Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions

By Berman, Mitchell N. | Texas Law Review, May 1, 2013 | Go to article overview

Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions


Berman, Mitchell N., Texas Law Review


Introduction

The Supreme Court's feverishly anticipated decision in National Federation of Independent Business v. Sebelius1 ("the Health Care Decision" or "NFIB") regarding the constitutionality of the Patient Protection and Affordable Care Act (colloquially known as "Obamacare") produced three main holdings concerning two critical provisions of the Act.2 The first two holdings concerned the "individual mandate" that requires most Americans to maintain "minimum essential" health insurance. First, a 5.4 majority held that this provision exceeded Congress's power under the Commerce Clause.3 Second, a different 5.4 majority held that this same mandate, which requires those who fail to secure the minimum required health insurance to pay a tax penalty to the IRS, is a constitutional exercise of Congress's taxing authority.4 The third holding concerned "the Medicaid expansion," which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program.5 By the more lopsided margin of 7.2, the Court struck down this provision as an impermissible condition on the provision of federal funds to the states.6

Of these three holdings, the third.concerning what is often called Congress's "conditional spending power".is apt to have the most farreaching consequences beyond health care. The Court's Commerce Clause ruling was predicated on the fact that, in a majority's estimation, Congress was here imposing an unprecedented affirmative obligation upon individuals to enter commerce rather than, as is customary, regulating behavior that was already commercial.7 Because Congress could not have been expected to impose many.or any.such affirmative obligations even had the dissenters prevailed on the Commerce Clause issue, this ruling will likely have little future impact. And Congress rarely needs to resort to its taxing power to achieve regulatory ends when it can regulate "directly" on the strength of its commerce power.8 So the Court's relatively expansive interpretation of Congress's taxing power is not of great moment going forward precisely because its relatively restrictive interpretation of Congress's commerce power is not. But Congress makes habitual (a critic might even say "profligate") use of its conditional spending power.9 Accordingly, if, as appears to many, the Court has tightened the restrictions on this power, the implications could be profound.

Unfortunately, of the three holdings, the last is not only the most potentially significant, but also the one supported by the least clear rationale. At first blush, to be sure, the majority's reasoning seems straightforward. The key precedent on which the majority drew, South Dakota v. Dole,10 had announced a four-part test governing Congress's use of its spending power to induce state behavior that Congress could not mandate: the spending program must promote "the general welfare," the condition must be unambiguous, the condition must be related to the national interests that the spending would advance, and the condition may not require state recipients to violate the Constitution themselves.11 No Justices in NFIB expressed concern that the Medicaid expansion violated any of these limitations.

In addition to these four restrictions, however, the Dole Court read the Spending Clause to impose limits on Congress's ability to "coerce" the states in ways that it could not directly mandate under its other Article I powers.12 "[I]n some circumstances," the Court observed, "the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'"13 It is this prohibition on coercion or compulsion that, a majority of the Court concluded, doomed the Medicaid expansion.14 While candidly acknowledging that they could provide no guidance regarding how the line between inducement and compulsion would be assessed going forward, seven Justices nonetheless deemed the conditional offer that the Medicaid expansion embodied impermissibly coercive because it gave states "no choice" but to accept. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.