The Corner

The 11th Circuit’s Weird Omission on Medicaid

Those who still believe in our Constitution’s restraints on federal power were rightly delighted by the 11th Circuit decision striking down the individual mandate in Obama’s health care law.  That part of the opinion is masterful and exhaustive, running to some 89 pages.  But there was another vital federalism issue on appeal before the court, namely the constitutionality of the Medicaid expansion provisions.  Here the court gave short shrift, a perfunctory treatment of only 14 pages.  The court affirmed Judge Roger Vinson’s ruling below that the Medicaid provisions are constitutional, but totally ignored his provocative reasoning.  (I submitted an amicus brief to the 11th Circuit on this issue, and co-wrote an op-ed about it with Prof. Richard Epstein in the Wall Street Journal). 

The essence of Judge Vinson’s ruling on the Medicaid count was that the federal judiciary had declined the Supreme Court’s invitation, in the case of South Dakota v. Dole (1987), to develop a doctrine of “coercion” to assess the constitutionality of conditional federal funding programs for the states. The federal government uses these programs to coerce states into do things (such as raise their drinking age to 21) that it could not require them to do under any of its enumerated powers.  Dole teaches us that federal conditions can be so onerous as to “pass the point at which pressure turns into compulsion.”  Any such compulsion would be unconstitutional as a federal commandeering of state agencies.  Judge Vinson observed that the federal courts routinely pay lip service to Dole’s coercion doctrine but have never in practice found coercion in any case, no matter how onerous the conditions. His ruling was terse: “I must conclude that [the plaintiff’s coercion claim] cannot succeed and that the defendants are entitled to judgment as a matter of law.”  

This was a remarkable ruling at the summary judgment stage (before a trial on the facts) because Dole plainly requires a factual inquiry into whether federal conditions pass the point at which “pressure turns into compulsion,” and whether the states retained their prerogative “not just in theory but in fact.”  There was at least an issue of material fact as to whether the Medicaid expansion provisions are so onerous that the states can’t afford to opt out of the program.  The 11th Circuit should at least have reversed that summary judgment and returned the case to Judge Vinson for a trial on the facts.  

Judge Vinson’s ruled, in essence, that Dole doesn’t mean what it says; that there is no doctrine of coercion, hence no issue of material fact, hence summary judgment for the government.  The 11th Circuit completely ignored this aspect of the ruling, though it did recognize that other courts of appeal have similarly held:

If anything can be said of the coercion doctrine in the Spending Clause context, however, it is that it is an amorphous one, honest in theory but complicated in application. But this does not mean that we can cast aside our duty to apply it; indeed, it is a mystery to us why so many of our sister circuits have done so. To say that the coercion doctrine is not viable or does not exist is to ignore Supreme Court precedent, an exercise this Court will not do. As the district court noted, “The reluctance of some circuits to deal with this issue because of the potential legal and factual complexities is not entitled to a great deal of weight, because courts deal every day with the difficult complexities of applying Constitutional principles set forth and defined by the Supreme Court.” [Citation omitted]. If the government is correct that Congress should be able to place any and all conditions it wants on the money it gives to the states, then the Supreme Court must be the one to say it. [Italics mine].

But Judge Vinson said it; that was the essence of his ruling, and the 11th Circuit affirmed it. And it should be no mystery why so many circuits have tossed aside the coercion doctrine: conceptually, coercion cannot be a matter of a degree.  There isn’t any point at which pressure turns into compulsion: pressure is compulsion.  The Dole test is simply a mirage; it offers no protection whatever for state regulatory autonomy.  Only budgetary constraints prevent the federal government from taking over state governments completely through the use of conditional grants.  And the Supreme Court has rejected the notion that the political process is enough to protect the states.  In U.S. v. Printz (1997) the Court held that where a federal action threatens the “dual sovereignty” guaranteed to the states, it offends the federal structure of our Constitution, and must be struck down, regardless of degree.  Judge Vinson acknowledged this, and all but invited the Supreme Court to overrule Dole and extend the logic of Printz to the arena of conditional federal grants:

Some have suggested that, in the interest of federalism, the Supreme Court should revisit and reconsider its Spending Clause cases [e.g., Dole]. See Lynn A. Baker, The Spending Power and the Federalist Revival, 4 Chap. L. Rev. 195-96 (2001) (maintaining the “greatest threat to state autonomy is, and has long been, Congress’s spending power” and “the states will be at the mercy of Congress so long as there are no meaningful limits on its spending power”). However, unless and until that happens, the states have little recourse to remaining the very junior partner in this partnership.

Defenders of the Constitution should not rest on their laurels. It is a sad state of affairs when we have to breathe a sigh of relief that one federal appeals court ruled the federal government can’t force you to purchase whatever good or service it may fancy.  The Medicaid program is, and has been from the start, a total subversion of state sovereignty — one of the many federal intrusions into an area of regulation that the framers assured us would always remain within the states’ power to regulate.  It was during the New Deal that the Supreme Court was intimidated into abdicating its role as guardian of Constitution’s limits on federal power.  In the decades since then, particularly in the period of Warren and Burger, the Supreme Court discovered that it liked legislating much better than judging.  If the federal courts are now starting to reassert their role as guardians of the Constitution, it is still too little, too slowly — and quite possibly too late.  

Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.   

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