|Dear Commons Community,
The U.S. Supreme Court Ruling yesterday on health care has many implications. It will allow millions of people to get medical insurance, it gives President Obama a boost for his re-election campaign, it provides some credibility and hope for our political system in that the Supreme Court is not always necessarily locked into decisions based strictly on the conservative and liberal views of justices, and it establishes the position of the Supreme Court to rewrite if not re-intention a law passed by the Congress. The last is the focus of an op-ed piece in the New York Times written by Neal K. Katyal, a law professor at Georgetown and a partner at the law firm Hogan Lovells, who served as acting solicitor general of the United States and argued the health care cases at the appellate level. Katyal specifically comments:
“By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war.
Indeed, it is becoming so commonplace for the federal courts to invalidate legislation that a decision like the health care one is celebrated resoundingly — even when the court has invalidated part of a law Congress passed. In just one day, the Supreme Court struck down as unconstitutional just as many laws of Congress as it did during the first 70 years of its existence: two.
Obviously, health care has captured the minds of Americans — but moments before the court announced that decision, which upheld the overall law but invalidated a requirement that states expand Medicaid coverage in exchange for federal financing, it struck down another law, the Stolen Valor Act, which made it a federal misdemeanor to lie about having received a military decoration.
The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.
In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds. And it does so in the context of Medicaid, which Congress created and can alter, amend or abolish at any time. The states knew the terms of the deal when they joined — and those terms continue to be enshrined in the federal code.
This was the first significant loss for the federal government’s spending power in decades. The fancy footwork that the court employed to view the act as coercive could come back in later cases to haunt the federal government. Many programs are built on the government’s spending power, and the existence of an extraconstitutional limit on that power is a worrisome development.”
The government told the court that longstanding laws, like the Elementary and Secondary Education Act of 1965 and the Family Educational Rights and Privacy Act of 1974, contain clauses that condition money on state performance of certain activities. The decision leaves open the question of whether those acts, and many others (like the Clean Air Act), are now unconstitutional as well.
If Katyal is correct in his analysis, this decision portends a vast shift in the power of the Court over Congress and has far reaching implications in terms of the power struggles between the federal government and the states.