NFIB Sebelius Dissent

17 Oct

 

65

cerns and places an unaccustomed strain upon the Union.
Those States that decline the Medicaid Expansion must
subsidize, by the federal tax dollars taken from their
citizens, vast grants to the States that accept the Medicaid
Expansion. If that destabilizing political dynamic, so
antagonistic to a harmonious Union, is to be introduced at
all, it should be by Congress, not by the Judiciary.

 The values that should have determined our course to-
day are caution, minimalism, and the understanding that
the Federal Government is one of limited powers.  But
the Court’s ruling undermines those values at every turn.
In the name of restraint, it overreaches.  In the name of
constitutional avoidance, it creates new constitutional
questions. In the name of cooperative federalism, it un-
dermines state sovereignty.

  The Constitution, though it dates from the founding of
the Republic, has powerful meaning and vital relevance
to our own times.  The constitutional protections that this
case involves are protections of structure.  Structural
protections-—notably, the restraints imposed by federalism
and separation of powers-—are less romantic and have less
obvious a connection to personal freedom than the provi-
sions of the Bill of Rights or the Civil War Amendments.
Hence they tend to be undervalued or even forgotten by
our citizens. It should be the responsibility of the Court to
teach otherwise, to remind our people that the Framers
considered structural protections of freedom the most im-
portant ones, for which reason they alone were embod-
ied in the original Constitution and not left to later
amendment. The fragmentation of power produced by the
structure of our Government is central to liberty, and
when we destroy it, we place liberty at peril.  Today’’s
decision should have vindicated, should have taught, this
truth; instead, our judgment today has disregarded it.

 For the reasons here stated, we would find the Act in-
valid in its entirety. We respectfully dissent.

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