April 16 2012
Fed ED, Fed Med to the States: An Offer You Can’t Refuse
Vicki E. Alger
“Take it or leave it.” That was U.S. Supreme Court Justice Samuel A. Alito’s take on the Administration’s view of federalism based on its support of Medicaid expansion—a provision of the President’s Patient Protection and Affordable Care Act (Obamacare).
At issue is the potentially limitless expansion of federal power to impose conditions on states that accept federal funds. Already, 26 states are challenging the expansion of Medicaid arguing that it’s unconstitutionally coercive. The states’ theory, objects the Obama Administration, could lead to legal challenges of other federal spending areas as too coercive also—including federal education programs. As The Heritage Foundation’s Lindsey Burke writes,
Perhaps it’s no coincidence that education spending, conditioned on accepting executive branch policy priorities, was used as an example of federal overreach. The Obama Administration has been overreaching into local school decisions, such as the content taught in classrooms, by requiring states to adopt national standards and tests as a condition of receiving federal education funding.
To be sure, there is growing concern about federal overreach particularly with national standards (see here, here, and here, for example), and Justice Alito offered the following hypothetical to U.S. Solicitor General Donald B. Verrilli Jr., the one defending the Medicaid expansion:
Let's say Congress says this to the States: We have got great news for you; we know your expenditures on education are a huge financial burden, so we are going to take that completely off your shoulders; we are going to impose a special Federal education tax which will raise exactly the same amount of money as all of the States now spend on education; and then we are going to give you a grant that is equal to what you spent on education last year. Now, this is a great offer and we think you will take it, but of course, if you take it, it's going to have some conditions because we are going to set rules on teacher tenure, on collective bargaining, on curriculum, on textbooks, class size, school calendar and many other things. So take it or leave it.
If you take it, you have to follow our rules on all of these things. If you leave it, well, then you are going to have to fine -- you are going to have to tax your citizens, they are going to have to pay the Federal education tax; but on top of that, you were going to have to tax them for all of the money that you are now spending on education. Plus all of the Federal funds that you were previously given. Would that be—would that reach the point —would that be the point where financial inducement turns into coercion? (See pp. 143-44)
However novel federal coercion may appear concerning healthcare, it’s nothing new in education. From the earliest days of our Republic to contemporary opposition over No Child Left Behind, concern about federal overreach has transcended political lines. Consider the following sampling opposition:
When the question of federal involvement arose during the Constitutional Convention of 1787, Gouverneur Morris of Pennsylvania dismissed the idea out of hand saying only that it “is not necessary.” (p. 1293)
Sen. James M. Mason of Virginia opposed federal land grants to the states back in 1859 because it perverts federalism by “substituting the wisdom of Congress and the discretion of Congress in the management of domestic affairs of the States...All this to be done—for what? That the States may be bribed by Federal power to conform their domestic policy to Federal will.” (p. 719)
Sen. Barry Goldwater of Arizona opposed the National Defense Education Act of 1958, explaining that “the federal government has no funds except those it extracts from the taxpayers who reside in the various States. The money that the federal government pays to State X for education has been taken from the citizens of State X in federal taxes and comes back to them, minus the Washington brokerage fee.”
Recent magazine story headlines reflecting this sentiment include “Presidential Candidates and the School Yard Bribe” in National Review and “Gourmet Bribes for Test Score Improvement” in Mother Jones.
If the U.S. Supreme Court does consider coercion more closely, then Fed Ed—along with newcomer Fed Med—may have to revise more than two centuries of strong-arming states in the name of “federalism.”