Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions

The Supreme Court's feverishly anticipated decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act produced three main holdings concerning two critical provisions of the Act. Given the vast potential significance of the Court's holding on conditional spending and the manifest lack of clarity regarding its rationale, a comprehensive and critical assessment of this holding is urgent. That is the ambition of this article. Ruthlessly simplified, the core theses are these. First, insofar as the majority rested its holding of unconstitutionality on the ground that the amount of funds that a state would lose by not agreeing to the condition was so great as to compel the states to accept, that is a highly dubious rationale. Second, it does not necessarily follow that the Court's bottom-line conclusion was wrong. Third, the basic principles that govern whether a conditional spending offer from the national government to the states is unconstitutionally coercive are not particular to the conditional spending context.