The elephant in the courtroom

Mario Loyola Contributor
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Those who still believe in our Constitution’s restraints on federal power were rightly delighted by Friday’s 11th Circuit decision striking down the individual mandate in Obama’s health care law. The part of the opinion that deals with the individual mandate is masterful and exhaustive, running to some 89 pages.

But the constitutionality of the individual mandate wasn’t the only issue on appeal before the court. There was another important constitutional issue: whether the federal government can require states to expand their Medicaid programs as a condition of continuing to receive federal Medicaid funds. Here the court gave short shrift, a perfunctory treatment of only 14 pages that it could have copied from any constitutional law textbook. That’s too bad, because the Medicaid issue is at least as vital to the preservation of constitutional government as the individual mandate issue.

In the trial court below, Judge Roger Vinson ruled that the law’s Medicaid provisions are constitutional. The court of appeals affirmed his ruling but totally ignored his provocative reasoning.

The federal government sends huge amounts of money to the states — but imposes strict conditions on that money. This way, the federal government can pressure states into doing things (such as raise their drinking ages to 21) that it could not constitutionally require them to do. In South Dakota v. Dole (1987), the Supreme Court said that the penalty of losing federal funds “might be so coercive as to pass the point at which pressure turns into compulsion,” which is unconstitutional. The Court insisted that compliance with federal conditions must remain “the prerogative of the States not merely in theory but in fact.”

Judge Vinson observed that 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. So he concluded that the plaintiffs’ coercion claim could not succeed “and that the defendants are entitled judgment as a matter of law.”

Now think about that. The 26 states suing to stop Obamacare argued that they simply could not afford the loss of Medicaid funds, so compliance is in no sense voluntary — a violation of Dole. The government countered with evidence that in fact the penalty is less onerous than claimed. And yet, Judge Vinson ruled that there was no issue of material fact, and the government was entitled to judgment as a matter of law. This was a remarkable ruling at the summary judgment stage — before a trial on the facts. Dole plainly requires a factual inquiry into whether federal conditions “pass the point at which pressure turns into compulsion”; compliance must remain a state prerogative “not merely 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 states can’t afford to opt out. 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 ruled, in essence, that Dole doesn’t mean what it says; the amount of the penalty doesn’t matter, because there really is no prohibition against coercive conditions, hence no issue of material fact, hence summary judgment for the government. The 11th Circuit affirmed his judgment, but notice how it ignored what he actually said:

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. […] 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.

But Judge Vinson said it — that was the essence of his ruling, which the 11th Circuit affirmed. In fact, by upholding Judge Vinson’s ruling, the 11th Circuit did precisely what it said it could not do, namely cast aside the coercion doctrine. And it should be no mystery why so many “sister circuits” have tossed it aside. Coercion is coercion, whether it’s a single dollar or a billion. It’s a fool’s errand to look for the “point at which pressure turns into compulsion”: pressure is compulsion. The Dole test has been ignored because it’s based on a conceptual fallacy. As Professor Richard Epstein and I wrote in The Wall Street Journal back in June, a conditional federal grant is categorically coercive “because it necessarily conditions the exercise of one right upon the conscious surrender of a second.” The right a state surrenders when it accepts federal conditions is, of course, the right of its citizens to govern themselves through their state legislatures.

The Dole test is worse than a mirage. It does nothing to protect states’ regulatory autonomy, while allowing everyone to pretend that the states are protected. In fact, only budgetary constraints prevent the federal government from using conditional grants to take over state governments completely. The Supreme Court has already 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 the Constitution, and must be struck down. 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 thinks the federal government can’t force you to buy whatever it wants to force you to buy. The Medicaid program is, and has been from the start, a total subversion of the states’ “dual sovereignty” — one of the federal government’s many efforts to regulate things that the framers assured us the federal government would never regulate.

It was during the New Deal that the Supreme Court was intimidated into abdicating its role as guardian of the Constitution’s limits on federal power. In the decades since, the Supreme Court discovered that it liked legislating much more than it liked judging, and it became a willing accomplice to the dismantling of the Constitution’s limits. Hopefully, federal courts are reasserting themselves as guardians of the Constitution, but if so, it’s happening more than 70 years too late. Much has been done that needs to be undone if we are to stop the federal government’s relentless accumulation of power.

Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation. He filed an amicus brief for the 11th Circuit in this case.