A few weeks ago, I took issue with the PPACA plaintiffs’ contention that the statute impermissibly “coerces” states to participate in a massive expansion of Medicaid. The federal government’s brief on this issue is due today. I’m not going to like the feds’ position, either. Both sides, I believe, proceed from a badly flawed federalism premise.
Everyone recognizes that there is no direct, explicit constitutional guarantee against the “coercion” of state and local authorities by the federal government. However, the constitutional structure is widely understood to require a federal “balance” between Washington and the states. While the feds may encourage states to participate in federal schemes (usually, by offering them money), they may not coerce the states’ participation: that would derange the federal balance. The notion of “federalism as balance” is deeply embedded in the Supreme Court’s decisions, the legal literature, and the public federalism debate. In the contentious Obamacare litigation, it is a small patch of common ground among the parties.
It’s a miserable piece of real estate. Any appeal to federalism’s “balance” is pernicious, constitutionally baseless nonsense. Federalism is about a carefully wrought constitutional structure, not a global balance; and one cannot get that structure right until and unless the balance dogma is first put to rest. That’s the agenda for this post. (A more fully developed, footnoted version of the argument appears in The Upside-Down Constitution, which has a longer version of everything.) Monday’s post will apply the argument to the Obamacare litigation.