There are many unconstitutional elements of the Patient Protection and Affordable Care Act (a.k.a. Obamacare). One of these elements, lurking the midst, not getting the attention it should receive in the mainstream, at least not anymore, is unconstitutional Federal mandates on the states (as it relates to Medicaid).
Under Obamacare states can choose to either expand their Medicaid rolls or bear the full cost of Medicaid programs in their state while continuing to subsidize, through Federal Tax dollars, the Medicaid programs of other states. In other words, expand or we’ll eliminate your federal grants for your individual state. Though the mandate may be wrong politically, as more medicaid may only increase the poor’s dependency on government, I’ll show the mandate is wrong ethically, fiscally, constitutionally, and logically.
Obama’s administration touts the mandate as merely a “voluntary” option to the states, and thus constitutional. Let me paint the picture; The Federal Government manufactures an oppressive artificial false dichotomy, by giving the states one of two fiscally dangerous options. It’s akin to a bully telling a smaller child to give him his lunch or he’ll hit him. The bully didn’t ‘force’ the smaller child to hand over his lunch, merely presented the ‘voluntary’ option of either surrendering his lunch or his immediate physical wellbeing. Just as surely this bully is in the wrong for using force (coercion) to get the other child’s lunch, it is a clear misrepresentation of reality to claim the Obamacare mandate on Medicaid is voluntary, and not also force. Coercion is force, Mr. Obama, and to define coercion, ever, as ‘voluntary’ is simply wrong and deceiving.
Just on a very simple ethical level, giving some states more benefits and subsidies then other states for the same exact programs disproportionate to population is wrong. The coercion is outwardly oppressive for the reason that it explicitly conditions the free exercise of one right mutually inclusive with the conscious surrender of a second. In other words, give up your right as a State to not abide by unconstitutional Federal Mandates so that you may have your right to Medicaid grants, or give up your right to Medicaid grants so that you may practice your right to not abide by unconstitutional Federal Mandates. Giving some states more benefits and subsidies then other states for the same exact programs because you disagree with the latter states local policies is wrong, when the local government has the constitutional right to that local policy (in this case, via the 10th Amendment). Local policies are just that; local. Asymmetrical Federalism violates any concept of equality of the citizenry under the law.
The issue transcends the question of ethics. It’s also a fiscal issue; the State’s more or less run their own budgets and local affairs, but increasingly the Federal Government is increasing its role in these local state affairs, especially in relation to spending on entitlements. While some states have balanced budgets, the Federal Government has over $13 Trillion in debt and has been without a balanced budget in more than a decade. If the notoriously fiscally irresponsible Washington politicians usurp financial-responsibility from the States, it would make sense that we would see an increase in deficits and debt in the local states. In this specific case, the idea holds true; The Federal Government wants more spending from the states (for Medicaid), without a stated way for the states to pay for it, while many of the states want to keep at least a drop of fiscal sanity in their own legislatures, and not increase, exponentially, the spending on Medicaid.
The mandate may be fiscally wrong, but it’s also a constitutional assault. It’s unconstitutional for the reason that it violates the 14th amendment equal-protection-under-the-law’s clause; it gives some states more benefits then others for the same programs disproportionate to population. It’s also a violation of the 5th amendment as it serves to punish a group without due process of law. However, the bigger unconstitutional assault is based on the 10th Amendment, and, primarily, on the constitution as a whole. Let us remember that the Constitution is one of delegated powers; nowhere in the Constitution is the Federal Government delegated the power to tax/subsidize states differently based on who has local policies the Federal Government agrees with. Furthermore, the 10th Amendment is a second barrier against this; it says any power not explicitly delegated to the Federal Government is left to the States. The history of mandates in The Supreme Court goes way back, and isn’t officially settled. In 1936, in US V Butler, the Supreme Court warned that if conditional federal grants were not restrained, the fiscal power of the Federal Government “could become the instrument for the total subversion of the governmental powers reserved to the individual states.” In South Dakota V Dole (1987) the Supreme Court decided that Congress can condition 5% of federal highway grant funds on the states bringing the drinking age to 21. The court said this modest condition was “persuasion” not “coercion.” It warned, though, that “in some circumstances, the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” There was one problem with this decision; it created the precedent that coercion is okay as long it under the category of ‘pressure’ and not past the point where it turns into ‘coercion.’ WHERE is this invisible point based on completely subjective and arbitrary language? WHERE? The reality is that there is no actual point; the precedent merely exists to ensure a growth of the Courts power to legislate from the bench based on will and not on judgment; to strike down mandates they feel, politically, are bad, under the guise of it passing this invisible ‘point’; that the pressure in that case is now ‘compulsion’ conveniently when they disagree with the politics of the mandate. Fortunately for the White House and Congress, The Supreme Court seems to agree with many of their grant-based mandates; the court have routinely ignored the supposed existence of this ‘point’ in which ‘pressure’ turns to ‘coercion,’ because almost every single grant-based mandate from the Federal Government has been happily affirmed by the Supreme Court, even when the mandates were clearly obscenely intrusive.
Besides constitutionally, just logically, it makes no sense to create a spectrum, or a continuum, of coercion as a matter of degree. Coercion is clearly defined as force. Any coercion, of any monetary value, based on grants to the states, serves to do nothing more than punish states who don’t fall in line with Washington’s position on an issue. It isn’t about the size of the issue, the amount of money, nor whether the position of the government is right; It is the existence of the ‘punishment’ or force through grant-based mandates, to begin with, that is the problem. The very fact that Washington has to use coercive underhanded tactics to enforce their positions suggests that they don’t care at all about ‘constitutionality.’ All they care about is enforcing their political ideology, and if enforcing it by legislation is too obvious and would cause too much political hoopla, than an underhanded ‘voluntary’ grant-based mandate technique might do the trick. The specific policy they hope to enforce, or to what ‘degree’ of coercion they utilize is of no import; it is the existence of the unconstitutional coercion itself which is the issue. Any claim of ‘degrees’ is absolutely false because no objective formula can determine the degrees.
The all-knowing and always-consistent Supreme Court has not only ignored its own ruling on Dole but even the implicit idea behind the precedent; that the coercion is only bad depending on the ‘level’ of coercion. In New York V US (1992) and in Printz V US (1997) and in countless other cases the Supreme Court has told, in non-grant related mandates, that the Supreme Court can’t use force to coerce states, usually by simple act of law or regulation, based on a little thing called the 10th Amendment. In absolutely 0% of those cases did they ever mention, care, or rest their decision on the idea of it being a “level” of coercion past simple pressure. In those cases, the pressure itself was unconstitutional. So I guess the Court gets it right sometimes when it decides not to listen to its own absurdity.
Printz:
http://www.oyez.org/cases/1990-1999/1996/1996_95_1478
New York V US: http://www.oyez.org/cases/1990-1999/1991/1991_91_543
South Dakota Case:
http://www.oyez.org/cases/1980-1989/1986/1986_86_260
US V Butler:
http://www.oyez.org/cases/1901-1939/1935/1935_401
New State Ice Co Case:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=285&page=262
Policy Interns 