A Constitutional Opening

Now that President Obama has won reelection, the states are grappling with implementation of the Patient Protection and Affordable Care Act of 2010. Last June, in NFIB v. Sebelius, the Supreme Court gave the act a mixed bill of constitutional health. It upheld the individual mandate by saying that it was constitutional under Congress’s taxing power. However, it also ruled that Congress could not compel the states to expand their Medicaid programs by threatening to cut off all Medicaid subsidies if they did not do so. Imposing onerous new requirements in a program that already represents such a large part of the states’ budgets that they can’t afford to lose federal subsidies, the Court ruled, is unconstitutional. This was the first significant limitation on the federal government’s power to use the strings attached to fiscal subsidies — “grants-in-aid,” as they used to be known — in order to make states implement federal policies.

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