NFIB Sebelius Dissent

17 Oct



ture of the ACA. The goal of the Act is to provide near-
universal medical coverage, 42 U. S. C. §18091(2)(D), and
without 100% State participation in the Medicaid pro-
gram, attainment of this goal would be thwarted.  Even if
States could elect to remain in the old Medicaid program,
while declining to participate in the Expansion, there
would be a gaping hole in coverage.  And if a substantial
number of States were entirely expelled from the program,
the number of persons without coverage would be even

  In light of the ACA’’s goal of near-universal coverage,
petitioners argue, if Congress had thought that anything
less than 100% state participation was a realistic possibil-
ity, Congress would have provided a backup scheme.  But
no such scheme is to be found anywhere in the more than
900 pages of the Act. This shows, they maintain, that
Congress was certain that the ACA’’s Medicaid offer was
one that no State could refuse.

  In response to this argument, the Government contends
that any congressional assumption about uniform state
participation was based on the simple fact that the offer
of federal funds associated with the expanded coverage is
such a generous gift that no State would want to turn it

 To evaluate these arguments, we consider the extent of
the Federal Government’s power to spend money and to
attach conditions to money granted to the States.


 No one has ever doubted that the Constitution author-
izes the Federal Government to spend money, but for
many years the scope of this power was unsettled.  The
Constitution grants Congress the power to collect taxes “”to
. . . provide for the . . . general Welfare of the United
States,”” Art. I, §8, cl. 1, and from “the foundation of the
Nation sharp differences of opinion have persisted as to


the true interpretation of the phrase”” ““the general wel-
fare.”” Butler, 297 U. S., at 65.  Madison, it has been said,
thought that the phrase “”amounted to no more than a
reference to the other powers enumerated in the subse-
quent clauses of the same section,”” while Hamilton “”main-
tained the clause confers a power separate and distinct
from those later enumerated [and] is not restricted in
meaning by the grant of them.””  Ibid.

 The Court resolved this dispute in Butler. Writing for
the Court, Justice Roberts opined that the Madisonian
view would make Article I’s grant of the spending power a
““mere tautology.”” Ibid. To avoid that, he adopted Hamil-
ton’’s approach and found that ““the power of Congress to
authorize expenditure of public moneys for public pur-
poses is not limited by the direct grants of legislative
power found in the Constitution.””  Id., at 66. Instead, he
wrote, the spending power’’s ““confines are set in the clause
which confers it, and not in those of section 8 which be-
stow and define the legislative powers of the Congress.””
Ibid.; see also Steward Machine Co. v. Davis, 301 U. S.
548, 586–-587 (1937); Helvering  v. Davis, 301 U. S. 619,
640 (1937).

  The power to make any expenditure that furthers ““the
general welfare”” is obviously very broad, and shortly after
Butler   was decided the Court gave Congress wide leeway
to decide whether an expenditure qualifies.  See Helvering,
301 U. S., at 640-–641.  ““The discretion belongs to Con-
gress,”” the Court wrote, “”unless the choice is clearly
wrong, a display of arbitrary power, not an exercise of
judgment.”” Id., at 640.  Since that time, the Court has
never held that a federal expenditure was not for ““the
general welfare.””


 One way in which Congress may spend to promote the
general welfare is by making grants to the States. Mone-

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