The Next Legal Challenge

At the Wall Street Journal is an article about a second wave of legal challenges to ObamaCare, this time predicated on the idea that it is wrong for the government to force the states to expand their Medicare rolls.

Under the Patient Protection and Affordable Care Act, states have a choice: Expand their Medicaid rolls or bear the full cost of caring for their state's current Medicaid population, while continuing to subsidize the Medicaid programs of other states. The constitutional danger of such a scheme has long been recognized. In 1936, the Supreme Court warned in U.S. v. Butler that if conditional federal grants were not restrained, the taxing and spending power "could become the instrument for the total subversion of the governmental powers reserved to the individual states."

I'd classify such a challenge, if ultimately successful, under the heading, "buying us time," depending as it does on a welfare state modus operandi that shouldn't exist in the first place. Interestingly, as straightforward as this reasoning might seem, it has already been muddled by the courts.

Unfortunately, the Supreme Court's decision in South Dakota v. Dole (1987) confused matters. Dole let Congress condition 5% of federal highway funds on the states raising their drinking age to 21. The Court argued that this modest penalty was mere persuasion -- not coercion -- but cautioned 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.'"

The question, then, is where that point is. Judge Vinson denied that any such point exists because the federal courts have routinely ignored the Court's warning in Dole by approving virtually every conditional federal grant program -- no matter how intrusive.

The reason why the analysis in Dole has failed to offer any protection for state autonomy is that it is fundamentally wrong to think of coercion as a matter of degree. The government always engages in coercion when it taxes away money from the citizens of several states, only to return it to those states that abide by certain conditions. [emphasis added]

It's too bad that too few people -- perhaps even the author of this piece -- don't carry the notion that this type of coercion is wrong all the way down to the individual level, for this is precisely the kind of principle that has failed to inform jurisprudence for far too long.

On the one hand, I'd like to see ObamaCare stopped, but I hope the cost isn't some sort of affirmation of the Dole decision, or some more legally viable rationale for the "next ObamaCare" to succeed.

-- CAV

--- In Other News ---

Although I have used Linux for more than a decade, I have never gotten worked up over whether to call it Linux or GNU/Linux. Nevertheless, I found it interesting that, as measured by lines of code, the "GNU" portion of "GNU/Linux" makes up only 8% of a modern Linux distribution. But don't expect that to settle the naming controversy any time soon: The "Linux" portion (i.e., the kernel), makes up only about 9%.

I haven't read the whole article, but when she opens her piece on "The Republican Who Can Win," Dorothy Rabinowitz opines that he will be the one who can, "talk about matters like Medicare and Social Security without terrorizing the electorate." Maybe so, but conversely, until we can have an intelligent conversation about such things, our economy will continue speeding towards the abyss.

Glenn Reynolds asks: "SO IS THIS TRUE? Libertarians Who Live In The Real World Vote Republican." Taking "libertarian" to loosely mean "pro-capitalist" here, I'd say this belongs in my collection of "idiot bumper stickers." Pro-capitalists don't sequester themselves into their own party, either, as the abolitionists demonstrated long ago. Pro-capitalists who live in the real world support politicians, whatever the party, who promise to do pro-capitalist things, and remove them from power should they reneg. This can include voting for an opponent who is at least honest about where he stands.