Article

Beyond Separation in Federalism Enforcement: Medicaid Expansion, Coercion, and the Norm of Engagement

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Abstract

National Federation of Independent Business v. Sebelius may be known, in both the popular and academic commentaries, as the case about the Affordable Care Act’s Individual Mandate provision. History may record it as one of the most significant cases in the jurisprudence of cooperative federalism. In invalidating part of the Medicaid Expansion provision, the Roberts Court became the first to invalidate a federal spending statute as unconstitutionally coercive of state governments. This decision has the potential to impact federal-state cooperative arrangements such as No Child Left Behind, and others far beyond the health care context.This Article argues that lack of attention to the Medicaid challenge, and the judiciary’s previous inability to articulate a framework for coercion, indicates the inappropriateness of our dominant conceptions of federalism enforcement for an age of cooperative governance. To the extent that claims of coercion require us to take into account the national-state interaction over time, they offer the opportunity to transcend current frameworks in federalism enforcement, which disregard the bureaucratic dimension of policy implementation, and operate under a separatist paradigm with respect to national and state authority. Unfortunately, the Supreme Court’s decision in National Federation exemplifies the extent to which federalism enforcement continues to be dominated by each of these conceptions of federalism enforcement. As a result, federalism enforcement remains institutionally and temporally truncated, focusing solely on Congress and legislative enactment to the exclusion of administrative agencies and post-enactment policy implementation. In this framework, the unrealistic norm of separation reigns supreme.This Article argues that a norm of engagement better exemplifies the relationship inaugurated between states and the national government in the context of cooperative federalism. Medicaid in particular stands as a model of the embedded interactions between states and the national government. This engagement of policy implementation takes place in administrative agencies. The national-state relationship at the agency level involves repeated interaction aimed at the achievement of policy objectives. These repeated interactions demonstrate the need for a norm of federalism enforcement that exemplifies the ways in which states and the national government remain vulnerable in their interaction with one another. Such a norm is available by looking to administrative agency practice and administrative law doctrine. This norm is capable of reorienting Tenth Amendment jurisprudence, and federalism enforcement, more broadly.

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Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise. For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes by the joint dissent) decided that the Medicaid expansion created by the ACA was a “new” program to which Congress could not attach the penalty of losing all Medicaid funding for refusing to participate. NFIB signals the Roberts Court’s interest in continuing the Federalism Revolution. The Court relied on, seemingly modified, and strengthened at least two existing elements of the test for conditional spending articulated in South Dakota v. Dole. Clear notice and germaneness now appear to be folded into the newly fashioned yet undefined coercion doctrine, which relied on quantitative as well as qualitative analysis to determine that the Medicaid expansion was unconstitutionally coercive. The Court is now actively enforcing the Tenth Amendment to protect states from federal spending legislation.NFIB raises many questions regarding implementation of the Medicaid expansion as well as the ACA. The dockets will experience the reverberations of these open questions, as well as the Court’s invitation to explore the coercion doctrine. Thanks to their success before the Court, states are no longer plaintiffs claiming coercion, powerless with a “gun to the head.” The Court’s decision grants them the option to expand Medicaid or not, leaving them with the difficult political choice upon which the lives of some of our most fragile, disenfranchised citizens will rely. We are plunged into Justice Cardozo’s “endless difficulties.”
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