NFIB Sebelius Dissent

17 Oct



168. But when the Federal Government compels the
States to take unpopular actions, “”it may be state officials
who will bear the brunt of public disapproval, while the
federal officials who devised the regulatory program may
remain insulated from the electoral ramifications of their
decision.”” Id., at 169; see Printz, supra, at 930.  For this
reason, federal officeholders may view this “”departur[e]
from the federal structure to be in their personal interests
. . . as a means of shifting responsibility for the eventual
decision.”   New York, 505 U. S., at 182–-183.  And even state
officials may favor such a “”departure from the constitu-
tional plan,”” since uncertainty concerning responsibility
may also permit them to escape accountability.  Id., at
182. If a program is popular, state officials may claim
credit; if it is unpopular, they may protest that they were
merely responding to a federal directive.

 Once it is recognized that spending-power legislation
cannot coerce state participation, two questions remain:
(1) What is the meaning of coercion in this context?  (2) Is
the ACA’’s expanded Medicaid coverage coercive? We now
turn to those questions.


 The answer to the first of these questions—-the meaning
of coercion in the present context—-is straightforward.  As
we have explained, the legitimacy of attaching conditions
to federal grants to the States depends on the voluntari-
ness of the States’’ choice to accept or decline the offered
package.  Therefore, if States really have no choice other
than to accept the package, the offer is coercive, and the
conditions cannot be sustained under the spending power.
And as our decision in South Dakota v. Dole makes clear,
theoretical voluntariness is not enough.

In South Dakota v. Dole, we considered whether the
spending power permitted Congress to condition 5% of the  


State’’s federal highway funds on the State’’s adoption of
a minimum drinking age of 21 years.  South Dakota ar-
gued that the program was impermissibly coercive, but we
disagreed, reasoning that “”Congress ha[d] directed only
that a State desiring to establish a minimum drinking age
lower than 21 lose a relatively small percentage of certain
federal highway funds.””  483 U. S., at 211. Because ““all
South Dakota would lose if she adhere[d] to her chosen
course as to a suitable minimum drinking age [was] 5%
of the funds otherwise obtainable under specified high-
way grant programs,”” we found that “”Congress ha[d] of-
fered relatively mild encouragement to the States to enact
higher minimum drinking ages than they would otherwise
choose.”” Ibid. Thus, the decision whether to comply with
the federal condition “”remain[ed] the prerogative of the
States not merely in theory but in fact,”” and so the pro-
gram at issue did not exceed Congress’’ power. Id., at 211-–
212 (emphasis added).

  The question whether a law enacted under the spending
power is coercive in fact will sometimes be difficult, but
where Congress has plainly “”crossed the line distinguish-
ing encouragement from coercion,”” New York, supra, at
175, a federal program that coopts the States’’ political
processes must be declared unconstitutional.  “”[T]he fed-
eral balance is too essential a part of our constitutional
structure and plays too vital a role in securing freedom for
us to admit inability to intervene.””  Lopez, 514 U. S., at
578 (KENNEDY, J., concurring).


  The Federal Government’’s argument in this case at best
pays lip service to the anticoercion principle.  The Federal
Government suggests that it is sufficient if States are
“”free, as a matter of law, to turn down” federal funds.
Brief for Respondents in No. 11–-400, p. 17 (emphasis
added); see also id., at 25.  According to the Federal Gov-

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