Listening to the third day of oral arguments before the Supreme Court over the Obama healthcare law today, I was struck by the discussion around whether the law constitutes coercion.
The law suggests the federal government would be within its right to deny medicaid funds long received to states who refuse to accept new funds to cover more of their citizens. The argument on the side of the twenty-six states resisting the law is that this is coercive (and therefore unconstitutional) because it does not allow them to realistically opt out of participation. States have become so dependent on this federal money that not receiving it would be tantamount to being fiscally incapacitated.
Interesting, I thought.
In discussion with Solicitor General Verrilli, Justice Alito (who certainly sees the law as unconstitutional) brought up the possibility of a similar situation in education.
"Let's say Congress says this to the States: We have got great news for you; we know your expenditures on education are a huge financial burden, so we are going to take that completely off your shoulders; we are going to impose a special Federal education tax which will raise exactly the same amount of money as all of the States now spend on education; and then we are going to give you a grant that is equal to what you spent on education last year.
Now, this is a great offer and we think you will take it, but of course, if you take it, it's going to have some conditions because we are going to set rules on teacher tenure, on collective bargaining, on curriculum, on textbooks, class size, school calendar and many other things. So take it or leave it."I was pleased Alito brought this up, because I'd been thinking about Race to the Top for about five minutes before Alito made reference to it (sort of). Made me feel like maybe I could become a Supreme Court justice one day (you don't have to have a law degree, you know - seriously).
Alito's point, of course, was that this would be coercive, and unconstitutional. Race to the Top was not quite as dramatic as Alito's scenario (nor was it a law passed by Congress). The Department of Education did not offer to pay for all of states' educational expenditures. But given the doomsday scenario facing states as a result of the foolish requirements imposed by NCLB and the dire financial status of many very poor districts in the wake of the 2008 economic meltdown, it is easy to see how difficult it might have been for states to pass up the opportunity to provide more federal funds to their districts. What decent person wouldn't at least be tempted by the offer, even when unsavory requirements come attached?
As much of the media now predicts (and I'm tempted to agree) that the healthcare law will be declared unconstitutional within a few months, I'm curious as to how the justices would treat RTTT were it before the court? I wonder, since, as Justice Kennedy rightly noted, most questions in life are questions of degree, how much leverage the federal government must employ before it's considered coercive? And how much more of that coercion is our system willing to tolerate when it benefits corporate interests rather than the citizenry?