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

89 Pages Posted: 13 Aug 2012 Last revised: 2 Oct 2015

Nicole Huberfeld

Boston University - School of Public Health

Elizabeth Weeks Leonard

University of Georgia School of Law

Kevin Outterson

Boston University School of Law

Date Written: August 13, 2012

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.”

Keywords: coercion, Tenth Amendment, Medicaid, spending power

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: https://ssrn.com/abstract=2128760 or http://dx.doi.org/10.2139/ssrn.2128760

Nicole Huberfeld

Boston University - School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States

Elizabeth Weeks Leonard

University of Georgia School of Law ( email )

225 Herty Drive
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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