June 30 2012
ObamaCare and the “Unconstitutionally Coercive” Standard
Vicki E. Alger
Two months ago I wrote about U.S. Supreme Court Justice Samuel A. Alito’s take on the Obama administration’s arguments for the Medicaid expansion—a provision of the President’s Patient Protection and Affordable Care Act (ObamaCare). Justice Alito offered U.S. Solicitor General Donald B. Verrilli Jr., the hypothetical example of a “federal education tax,” saying:
"Now, this is a great offer, and we think you will take it," Justice Alito said. "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." The states could say no, but they would have to pay the federal education tax, plus come up with their own money to replace the federal dollars they declined, the justice added. "Would that be the point where financial inducement turns into coercion?"
I wondered then, “If the U.S. Supreme Court does consider coercion more closely, then Fed Ed...may have to revise more than two centuries of strong-arming states in the name of ‘federalism’.”
The Wall Street Journal noted for all the alarming precedents of Chief Justice Robert’s ObamaCare ruling, “Still, this is the first time the Court has found a law enacted under Congress’ spending power to be unconstitutionally coercive.”
If the “unconstitutionally coercive” standard does take hold, then states and individuals have a powerful new weapon in their legal arsenal to fight back against ongoing federal power grabs, including the push for Common Core National Standards, which is expressly prohibited (See "Federal Control of Education Prohibited," Sec. 604, p. 90).