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Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions

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... As long as provisions of a grant are clear in advance, and prospective, offers of new funding with conditions are not coercive. 365 States cannot be forced to accept federal grants. But the scenario does differ from Medicaid where taking federal money also means taking on a state obligation to pay some of the costs. ...
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This Article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify— agencies’ longstanding reluctance to engage in funding cut-offs: first, that funding cut-offs will hurt the grant program’s beneficiaries and so will undermine the agency’s ultimate goals; second, that federalism concerns counsel against federal agencies’ taking funds away from state and local grantees; third, that agencies are neither designed nor motivated to pursue funding cut-offs; and fourth, that political dynamics among state governments, Congress, the White House, and the agencies themselves make funding cut-offs difficult to achieve. This Article argues that these critiques are deeply flawed. Among other problems, the critiques fail to account for the variety of types of grants, grant conditions, and rationales for grantee noncompliance; reflect lack of a nuanced understanding of the ways in which distinct federalism concerns play different roles at different times in the development and implementation of grant programs; and unrealistically assume static and unified agency incentives and political relationships. After debunking these critiques, the Article offers a new conception of the potential benefit of funding cut-offs in the enforcement of federal grant programs: the threat of a funding cut-off may be appropriate when it can promote change by the noncompliant grantee and when it can signal to other grantees that the agency is serious about enforcement, thereby increasing grantees’ compliance. The Article concludes by assessing the implications of this argument for administrative regime design and judicial review. This work opens up new avenues for research in administrative law on the distinct features of the federal grants regime.
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When modern American courts assess the constitutionality of a statute, they often investigate the possibility that the enacting legislature had hidden purposes that make the statute invalid. For most of our history, though, courts shied away from such inquiries -- not because the Constitution was thought to impose no purpose-based restrictions on legislative power, but because those restrictions were not thought to lend themselves to much judicial enforcement. This Article provides a comprehensive history of changes over time in judicial review of legislative purpose. Given the increasing prominence of purpose tests in modern constitutional adjudication, this history is important in its own right. But it also sheds light on other topics of interest to modern lawyers, including the proper interpretation of various seminal precedents, the famously murky doctrine of "unconstitutional conditions," and the ways in which uncodified norms of judicial practice can affect the glosses that courts put on the Constitution's text.
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This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation, and by addressing any accountability problems that commandeering can cause. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control. While it is a context-sensitive empirical question whether specific applications of the commandeering ban would cause the federal government to respond by engaging in preemption, giving states a choice between commandeering and preemption, using the conditional spending power, or declining to regulate, this inquiry primarily advances a conceptual claim. Because there often will exist a non-trivial chance that Congress will engage in preemption when it cannot commandeer, and because it is impossible for the Court to know at the time of judicial decision where a given case fits along the continuum of preemption probabilities, federalism doctrine requires a strategically sophisticated conceptual system, one that takes into account all of the regulatory possibilities before Congress. This inquiry recommends replacing the Court's categorical anticommandeering rule with a legal standard that is sensitive not only to accountability concerns, but also to the feasibility of preemption should commandeering be prohibited and to the financial burdens imposed by commandeering. One payoff of this approach is that it turns the conventional wisdom about New York and Printz on its head. Because preemption was reasonably available in the short run only in New York, and because accountability concerns were not greater in New York, Printz remains a close case, but the Court in New York should have rejected the state's Tenth Amendment challenge. After anticipating various objections, the author employs a post-9/11 terrorism hypothetical to illustrate the argument's potential relevance and force.
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