A Florida trial judge struck down Obamacare last year on the grounds that its individual mandate violates limits on Congress’ power under the Interstate Commerce Clause – but simultaneously rejected arguments that Obamacare’s Medicaid expansion provisions violate limits on ongressional spending clause powers by imposing unfunded mandates that states effectively cannot avoid.
But the spending clause challenge seemed plausible to at least one judge on the three judge panel of the Eleventh Circuit Court of Appeals that heard arguments in the challenge to Obamacare on June 8, as Reason magazine’s Peter Suderman notes:
The states’ principal argument in their constitutional challenge is that the Medicaid expansion provisions are unduly coercive, in violation of the Supreme Court’s decisions in South Dakota v. Dole (1987) and United States v. Butler (1936). But as the states note on page 13 of their reply brief, Obamacare (also known by the legal acronym “ACA”) also violates the Dole decision’s “clear notice” rule requiring that federal conditions be clear enough to enable state governments to make an informed decision about participating in joint state-federal programs like Medicaid:
I filed a brief in the case that addresses that very issue, explaining how Obamacare’s Medicaid expansion provisions are unconstitutionally vague, ambiguous and indeterminate. On May 12, I filed an amicus brief on behalf of a majority of Minnesota’s State House of Representatives and leaders of the North Carolina and Minnesota legislatures. That brief explains how the healthcare law violates the “clear statement” rule in the Supreme Court’s Pennhurst and Dole decisions by imposing vague, indefinite, open-ended additional burdens on states, including massive, unpredictable costs in the billions of dollars.
Federal officials have issued over a thousand waivers of burdensome rules imposed by Obamacare, mostly to unions or other entities with political connections. Meanwhile, federal bureaucrats have vastly expanded the reach of other burdensome provisions of the law. For example, they have largely nullified the law’s grandfather clause, which was put into the law to keep Obama’s broken promise to let you keep your existing health insurance if you like it. (They also issued a rule rewarding end of life counseling, even though such a provision was removed from the bill prior to passage after the so-called “death panels” controversy.) The net result is that Obamacare’s consequences for states are unpredictable and indeterminate.
The brief I filed also explains why Obamacare’s individual mandate is not a valid exercise of Congress’ power under the Commerce Clause and is not justified under a “cost-shifting” rationale.
Even if it were not unconstitutional, Obamacare would still be harmful to the economy, medical innovation, patients, and employers.
The constitutional challenge to Obamacare’s Medicaid-expansion provisions was earlier explored by The Examiner’s Phillip Klein and Michael Barone. Legal commentator Ted Frank earlier discussed the “clear notice” argument here.
Hans Bader is Senior Attorney at the Competitive Enterprise Institute.
