The Federal Spending Power, Sebelius, and Empty Formalism

Since I’m teaching it today, a note on the second-worst decision issued by the Roberts Court. I wouldn’t have joined Sandra Day O’Connor’s dissent from in South Dakota v. Dole — which upheld the creation of a national drinking age through the spending power — but as I think I’ve said before in comments it’s actually quite good. Here’s how she describes the requirements that define the scope of the relevant federal power:

…the expenditure must be for the general welfare…the conditions imposed must be unambiguous…they must be reasonably related to the purpose of the expenditure…and the legislation may not violate any independent constitutional prohibition.[cites omitted]

This is a reasonable construction of an implicit limit on the federal spending power, and as O’Connor observes the potential problem with the national drinking age is the third criterion. I would uphold it because I think the rational basis test is the appropriate standard to apply an inferential limitation on federal power, and the relationship between federal highway spending and a uniform drinking age isn’t irrational. But the contrary conclusion of the dissenters is not unreasonable or unworkable.

The Medicaid expansion in the Affordable Care Act, needless to say, is plainly constitutional under all four of these criteria. Roberts’s re-writing of the Medicaid expansion rests solely on another defense of the uniform drinking age from Rehnquist’s majority opinion, that “all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact.” But to rule conditions placed on federal spending unconstitutional solely on this basis is transparently wrong. Ginsburg’s opinion in Sebelius is absolutely devastating on this point:

The ACA enlarges the population of needy people States must cover to include adults under age 65 with incomes up to 133% of the fed-eral poverty level. The spending power conferred by the Constitution, the Court has never doubted, permits Congress to define the contours of programs financed with federal funds. And to expand coverage, Congress could have recalled the existing legislation, and replaced it with a new law making Medicaid as embracive of the poor as Congress chose.

The question posed by the 2010 Medicaid expansion, then, is essentially this: To cover a notably larger population, must Congress take the repeal/reenact route, or may it achieve the same result by amending existing law? The answer should be that Congress may expand by amendment the classes of needy persons entitled to Medicaid benefits.
A ritualistic requirement that Congress repeal and reenact spending legislation in order to enlarge the population served by a federally funded program would advance no constitutional principle and would scarcely serve the interests of federalism. To the contrary, such a requirement would rigidify Congress’ efforts to empower States by partnering with them in the implementation of federal programs…

[…]

The Chief Justice acknowledges that Congress may “condition the receipt of [federal] funds on the States’ complying with restrictions on the use of those funds,” ante, at 50, but nevertheless concludes that the 2010 expansion is unduly coercive. His conclusion rests on three premises, each of them essential to his theory. First, the Medicaid expansion is, in The Chief Justice’s view, a new grant program, not an addition to the Medicaid program existing before the ACA’s enactment. Congress, The Chief Justice maintains, has threatened States with the loss of funds from an old program in an effort to get them to adopt a new one. Second, the expansion was unforeseeable by the States when they first signed on to Medicaid. Third, the threatened loss of funding is so large that the States have no real choice but to participate in the Medicaid expansion. The Chief Justice therefore—for the first time ever—finds an exercise of Congress’ spending power unconstitutionally coercive.

Medicaid, as amended by the ACA, however, is not two spending programs; it is a single program with a constant aim—to enable poor persons to receive basic health care when they need it. Given past expansions, plus express statutory warning that Congress may change the requirements participating States must meet, there can be no tenable claim that the ACA fails for lack of notice. Moreover, States have no entitlement to receive any Medicaid funds; they enjoy only the opportunity to accept funds on Congress’ terms. Future Congresses are not boundby their predecessors’ dispositions; they have authority to spend federal revenue as they see fit. The Federal Government, therefore, is not, as The Chief Justice charges, threatening States with the loss of “existing” funds from one spending program in order to induce them to opt into another program. Congress is simply requiring States to do what States have long been required to do to receive Medicaid funding: comply with the conditions Congress prescribes for participation.

The first fatal problem with Roberts’s holding is that it logically implies that there’s a permanent entitlement for states to receive federal spending once it’s been offered, but there is no such entitlement to federal spending. Roberts mentions that Medicaid makes up a huge portion of state budgets, but in itself this is constitutionally irrelevant. The ACA repeal passed by the House last year would have absolutely devastated state budgets, but that doesn’t make it unconstitutional. The “coercive” threat of withdrawing funding is inevitably and inescapably present in any conditional use of the federal spending power. Congress is free to change the conditions and the level of spending however is likes, as long as it meets the four criteria outlined in Dole.

The second problem, as we’ve discussed before, is that the holding does not even meaningfully protect state sovereignty. As Ginsburg points out, Congress can achieve precisely the same means and ends through formal repeal and replace without raising any constitutional problems. This kind of pure formalism might be OK from a dedicated constitutional court offering opinions as part of the enactment process, but it’s howlingly inappropriate to the American constitutional system, where the Congress that enacted the statute generally doesn’t get another bite at the apple. To strike down an act of Congress based on this kind of empty formalism is acceptable only if it’s plainly required by some black letter text, which needless to say this holding is not.

The Medicaid expansion holding in Sebelius has already led to plenty of avoidable death and suffering. It is certainly not compelled by text or precedent, and Congress had no reasonable expectation that the Supreme Court would rule this way. The holding is internally illogical, and as it can be so easily evaded by Congress going forward is also plainly part of a bad faith war on the ACA. (We’ve also been through this before, but the fact that it was 7-2 is also irrelevant to whether the decision is correct; since there weren’t five votes to uphold the expansion as is we can infer from Breyer and Kagan’s votes that 1)they preferred making the expansion optional to striking it down altogether, and 2)that’s it.) The standard it creates is neither attractive in itself nor workable going forward. Putting “states’ rights” indirectly inferred from the text of the Constitution above human rights is perverse. It’s one of the worst decisions ever handed down by the Supreme Court of the United States.