Abstract

http://ssrn.com/abstract=2128760
 


 



Plunging Into Endless Difficulties: Medicaid and Coercion in National Federation of Independent Businesses v. Sebelius


Nicole Huberfeld


University of Kentucky College of Law

Elizabeth Weeks Leonard


University of Georgia School of Law

Kevin Outterson


Boston University School of Law

August 13, 2012

93 B.U.L. Rev. 1 (2013)
Boston Univ. School of Law, Public Law Research Paper No. 12-40

Abstract:     
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.”

Number of Pages in PDF File: 89

Keywords: coercion, Tenth Amendment, Medicaid, spending power

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Date posted: August 13, 2012 ; Last revised: May 8, 2013

Suggested Citation

Huberfeld, Nicole and Leonard, Elizabeth Weeks and Outterson, Kevin, Plunging Into Endless Difficulties: Medicaid and Coercion in National Federation of Independent Businesses v. Sebelius (August 13, 2012). 93 B.U.L. Rev. 1 (2013); Boston Univ. School of Law, Public Law Research Paper No. 12-40. Available at SSRN: http://ssrn.com/abstract=2128760 or http://dx.doi.org/10.2139/ssrn.2128760

Contact Information

Nicole Huberfeld
University of Kentucky College of Law ( email )
258 Law Building
Lexington, KY 40506-0048
United States
859-257-3281 (Phone)
Elizabeth Weeks Leonard
University of Georgia School of Law ( email )
Athens, GA 30602
United States

Kevin Outterson (Contact Author)
Boston University School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
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