Coercion, conditions, and commandeering: a brief note on the Medicaid holding of NFIB v. Sebelius

"Cooperative" fiscal federalism programs cover a vast range of government services, from education to transportation to health care. Far and away the largest of these programs is Medicaid, which constitutes close to 45% of all federal transfer payments and something like 24% of the States' budgets. The Patient Protection and Affordable Care Act works a further, massive expansion of the program. That expansion, as all but the comatose know, was challenged on constitutional grounds by the (state) petitioners in National Federation of Independent Business v. Sebelius. The challenge sounded a recurrent theme of conservative politics, advocacy, and scholarship for the better part of four decades: some federal funding programs are unduly "coercive." An outright, affirmative federal order to any state ("do this or else") is called "commandeering"; and that, people know on good authority, is unconstitutional.