Obamacare: the power to spend must have limits

Today, Pacific Legal Foundation, along with the Claremont Institute and the Cato Institute, filed this brief in the U.S. Supreme Court in the Obamacare lawsuits. The brief focuses on the federal government’s power to give states money in exchange for them agreeing to do what the federal government wants them to do. In this case, the federal government is demanding that states take on enormous new Medicaid commitments as a condition of receiving federal moneys—and not just a small amount of money, but an amount that is sometimes as high as a third of their revenues.

In South Dakota v. Dole, the Supreme Court warned Congress that it could not get around its constitutional boundaries by twisting states’ arms in this way: “the power [to spend] may not be used to induce the States to engage in activities that would themselves be unconstitutional…[and] in some circumstances, the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” That’s clearly the case here—states have no realistic choice about accepting these funds, not only because the amount involved is so high, but because, as Dr. Jeffrey Singer pointed out recently, federal law forbids states from re-establishing the state-based medical care programs that they enjoyed before the federal government came to dominate the health care market. As Prof. John Eastman, principal author of the brief, notes, this Medicaid expansion comes at the end of a series of Congressional decisions that all recognized that federal intrusion on state power in the realm of health care was already pushing the constitutional envelope. “The ACA is a massive step beyond anything previously undertaken. That it has, through the mechanism of spending conditions, unconstitutionally coerced the States to participate only worsens the constitutional infirmity.  If any limits on the spending authority of the federal government are to remain, the Medicaid expansion provisions of the ACA must be held unconstitutional.”

This is the first of two briefs PLF will be filing in the Supreme Court in the Florida Obamacare litigation. The next will be filed in a few weeks.