Spending Programs and the New Roberts Court

Abstract

This article is the first to spotlight states' theories being advanced in litigation challenging a startling array of federal programs rooted in the spending power. Congress can establish fully-federal spending programs or work with states by offering money for implementing federal policies in cooperative federalism programs. In 2010, states challenged the ACA's Medicaid expansion, arguing they should receive funding for a cooperative federalism program without implementing federal conditions they disliked. The Roberts Court agreed, taking the opportunity to limit Congress's spending power under the coercion doctrine. This article reveals how new litigation builds on this history but goes farther, challenging federal authority for regulatory dominance and attempting to thwart both cooperative federalism and fully-federal policies by asserting state supremacy when Congress enacts the program at issue under the Spending Clause. This investigation of spending power arguments is imperative, as states are poised to undercut federal and state health care, public health, and other social programs that rely heavily on federal funding. Indeed, during the 2023 Term, the Court heard multiple cases implicating these issues, two of which surfaced the same spending power, federalism, and state medical regulation questions that are appearing across ongoing litigation. This Term, the Court granted another petition for certiorari with similar arguments, even though the Court decided the issues two years ago. 

This article maps the patterns of state theories for limiting the spending power while asserting dominance over regulation of medicine, showing the same issues appear repeatedly, often with similar language. This analysis reveals four lines of argumentation, three testing the breadth of the spending power and one trying to limit spending programs' enforcement against states, all citing federalism principles for revisiting the spending power. These efforts echo 2010, when states started to challenge the ACA as an exercise of spending power. The article predicts two arguments may succeed given the Justices' expressed views. The result could be a shift in the scope, interpretation, and enforcement of longstanding spending programs, like Medicare and Medicaid. If successful, advocates may perceive a short-term political win in limiting federal authority, but states have a history of needing federal assistance, and the strategy could backfire.

Keywords: health, public health, federalism, spending power, social program, Medicaid, Medicare, EMTALA