Does Congress have to tear down before it can build up?

Commentary | By Craig Gurian |

July 5, 2012 — The triumph of the Union in the American Civil War represented a new beginning for us as a single nation, not simply a federation of states.  Linguistically, we went from “these United States are” to “the United States is”; constitutionally we affirmed through the 14th Amendment that each individual born or naturalized here is a citizen of the United States with “privileges and immunities” that flow from that national citizenship.

The Chief Justice’s view of the “practical constraints” and risks of “political reconsideration”to the repeal-and-reenactment route had nothing to do with defining the scope of Congressional powers: risks and constraints are ever changing as the political composition of Congress changes.

Even before the Civil War, the Constitution offered no basis to think of states as possessing full sovereignty equivalent to that of independent nations. States did and do have a sphere within which they can legislate. Nevertheless — as originally set forth in Article VI of the Constitution — when Congress exercises its powers, states, as subordinate entities, must yield to the federal government.

It’s worth quoting from Article VI:  “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Nevertheless, a lot of people — from those who betrayed their country to join the Confederacy, to those who raised the “states’ rights” banner in defense of racial segregation in the 1950s and 1960s, to those who oppose labor and environmental protections — have never liked or accepted the idea of federal supremacy, preferring instead to imagine that states (at least those states that are congenial to their political views) are entitled to a deference never once referred to in the text of the Constitution.

(The 10th Amendment, often cited by states-righters, actually underlines both the point that the federal government’s powers did not come from the states but from the Constitution itself, and that there is no constitutionally-prescribed “deference” to states. Either the United States does not have a power, or it does. If it does, whatever political considerations outside of the Constitution may limit the exercise of a federal power, no other limitation is set forth in the Constitution.)


E pluribus unum no more

The Supreme Court’s decision on the Affordable Care Act did many things, but it was most fundamentally a decision to reorder the relationship between the federal government and the states, a decision to subordinate the idea of nationhood to judge-made deference theory.

The judicial Houdini acts these justices performed to prohibit Congress from conditioning funds attributable to the existing Medicaid program on agreement to expand Medicaid eligibility were staggeringly perverse.

You wouldn’t know it from the way Chief Justice Roberts and the “joint dissenters” (Justices Scalia, Thomas, Kennedy, and Alito) framed their opinions to appear to be based on case law that had come before, but, as Justice Ginsburg wrote in her opinion — using italics to emphasize her point — the ACA case represented “the first time ever” that an exercise of Congress’ spending power had been found to be “unconstitutionally coercive.”

The supposed coercion involved the ACA’s expansion of Medicaid. States that failed by 2014 to expand Medicaid eligibility to all individuals less than 65 years of age with income of less than 133 percent of the federal poverty line would have lost all of the funding that a future Congress chose to appropriate to Medicaid (not just the portion of such future funding that was attributable to the expansion).

Both the Chief Justice and the joint dissenters were in something of a box: they all were constrained to acknowledge that the Supreme Court had long recognized that the power of Congress to spend funds for the general welfare included the right of Congress to grant federal funds to the states and to condition the grant on the states’ taking specified actions — including actions that Congress does not have authority, through the exercise of any of its other powers, to require states to take.

The judicial Houdini acts these justices performed to prohibit Congress from conditioning funds attributable to the existing Medicaid program on agreement to expand Medicaid eligibility were staggeringly perverse. (Justices Breyer and Kagan joined the Chief Justice in this aspect of his decision.)

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