The Supreme Court can pack large portents in small details. When in late March it considers the constitutionality of Obamacare, there will be 51 / 2 hours of oral argument — the most in almost half a century. This is because the individual mandate (Does Congress’s power to regulate interstate commerce extend to punishing the inactivity of not buying insurance?) is just one of the law’s constitutionally dubious features.
An hour of argument will be devoted to whether Obamacare’s enormous expansion of Medicaid is so coercive of states that it is incompatible with federalism — the Constitution’s architecture of dual sovereignty. The court’s previous rulings about compulsion point toward disallowing this expansion.
The Constitution created a federal government of limited and enumerated powers and promptly strengthened this with the 10th Amendment. The Supreme Court has held that the states therefore retain “a residuary and inviolable sovereignty” incompatible with federal “commandeering” of states’ legislatures and executives. Under Obamacare’s Medicaid expansion, states are dragooned for the furtherance of federal objectives.
In 1987, the court upheld a federal law denying a portion of federal highway funds to states that refused to implement a drinking age of 21. The court held that the threatened loss of funds — only 5 percent — was a “relatively small” inducement and hence “not so coercive as to pass the point at which pressure turns into compulsion.” The court thereby said the federal government cannot behave like Don Corleone, making offers states cannot refuse. At some point, government crosses the threshold of unconstitutional compulsion.
The crucial consideration is the degree of threatened impoverishment. Because of Obamacare, the nation needs clarity from the court. If it now thinks Congress has unfettered power to place conditions on states receiving money from it, the court should explicitly disavow its coercion doctrine. But if the coercion doctrine is to survive, Obamacare should not.