Sam Bagenstos on Spending-Clause Legislation After the Health Care Decision

In its recent health care ruling, National Federation of Independent Business v. Sebelius (NFIB), the Supreme Court held (7-2) that the Affordable Care Act's medicaid expansion unconsitutionally coerced the states to accept the expansion and thus offended the Constitution's so-called Spending Clause. Some observers think that the Court's Spending Clause holding calls into question the constitutionality of much existing Spending Clause legislation and takes off the table many federal-state programs that otherwise might have been enacted in the future. (See, for example, Scott Michelman's August 1 post.)

Law professor Sam Bagenstos has written "The Anti-Leveraging Princple and the Spending Clause After NFIB", which takes a different view. Here is the abstract:

This article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius, which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation. Notwithstanding some of the Court’s language, this article contends that the case is not best read as rendering federal spending conditions unconstitutional simply because they are attached to large amounts of federal money, change the terms of participation in entrenched cooperative programs, or tie together separate programs into a package deal. Rather, Chief Justice Roberts’s pivotal opinion is best read as adopting an “anti-leveraging principle” that will find coercion only where all three of these conditions are present at the same time. The anti-leveraging principle both makes the most sense of what the Chief Justice actually said in NFIB and does a better job of accommodating the relevant constitutional values than do alternative readings of the case. Although that principle threatens the constitutionality of far fewer conditional-spending laws than do those alternative readings, it raises challenging questions about the constitutionality of certain spending conditions. And it gives states an important new tool in negotiations with federal administrators.