Confusion over Compulsion

In the first third of the twentieth century, the Supreme Court occasionally was inspired to state that certain acts of Congress which were undeniably exercises of its enumerated powers, like the power to tax and spend for the general welfare or the power to regulate interstate commerce, were nonetheless unconstitutional because they touched upon subject areas inappropriate for federal consideration. For instance, a tax on the interstate shipment of goods manufactured using child labor was unconstitutional, notwithstanding Congress' clear power to tax things that get shipped across state lines, because (apparently!)

regulating child labor was just something Congress wasn't supposed to do. Likewise, the Agricultural Adjustment Act was struck down in 1936 because regulating agriculture was something Congress wasn't supposed to do, and a certain bundle of taxes and spending were considered to be regulations of agriculture. This approach was, of course, pretty much abandoned after 1937 in all post-New Deal jurisprudence, and for good reason: it was silly, it was confusing, and it lacked any foundation in Constitutional text. How is one to know, looking at the text of the Constitution, which subject areas are or aren't appropriate for federal treatment? Moreover, if Congressional exercise of its enumerated powers is subject to such censorship on the basis of old-fashioned notions of propriety, the government will be perpetually unable to meet the needs of a changing world, not because it lacks the authority to do so under the Constitution, but because the needs are new and people are unaccustomed to thinking of Congress using its powers in that way. Categorical federalism, as it was called, was a mess, and was rightly abandoned.

But in the last third of the twentieth century, and continuing right through June 28th, 2012, the Court has developed a new standard by which to judge Congressional exercise of its taxing, spending, and regulatory powers against some notion of state sovereignty: the compulsion test. The basic idea is that Congress may not compel or coerce states to behave a certain way. South Dakota v. Dole, among other cases, upheld a law in part by finding that it wasn't coercion. New York v. United States struck down one provision of a law on the grounds that it was compulsion of state legislatures. Printz v. United States held that Congress couldn't conscript state law enforcement officers into the administration of federal regulations. And, a few weeks ago, the Court in National Federation of Independent Business v. Sebelius held that changing the conditions of a federal/state jointly-administered spending program could amount to coercion, if the dollar figures involved were big enough. In my opinion there's a tremendous amount of confusion in this whole area, mostly because the Court has declined to pursue one of the two clear, coherent paths of reasoning on the issue.

The first path would be to say, as the Court has done with categorical federalism, no, concerns about coercion of the states cannot interfere with what would otherwise look like perfectly unobjectionable exercises of Congressional power. Under this approach, if Congress wanted to give each state a grant worth 100% of its annual budget on the condition that the states replaced their entire legal code with one legal code, written by Congress and uniform throughout the nation, that would be fine. Congress may, after all, spend money, and may give money to the states. As Congress may very plainly also not spend money, it follows that Congress may spend money if and only if it wants to, and it may declare that it will want to only if certain conditions are met. No problem. There are probably a lot of other things Congress could do under this approach, like imposing prohibitive taxes on the interstate transportation of anything into or out of a state that didn't criminalize a certain something that Congress wanted criminalized.

Now, of course, under this approach Congress' actual power would be pretty much unlimited, except by individual-rights provisions of the extended Bill of Rights*. After all, there are no limitations on state power, except the aforementioned extended Bill of Rights, and Congress' ability in practice to force the states to do anything Congress wanted through the use of its enumerated powers would be, I think, pretty much infinite. So Congress would basically come to have the general police power that we're all constantly told, though the Constitution never explicitly says so, it lacks. If the Court were to take this approach, what I'd want to happen would be for the nation then to have, over time, a serious discussion about what things were appropriate for Congress to legislate on and what things should be left to the states. Whatever most people ended up thinking was appropriate for Congress to do, Congress would do; whatever most people ended up thinking was appropriate for states to do, Congress wouldn't do. That's the hope, anyway, although given recent political culture I'll admit that might be just a bit optimistic.

The other course of action would be just to say that states are states, they are legitimate governments and not administrative divisions of the national government, and Congress mayn't make them administrative divisions. That would mean, I think, abandoning altogether the Court's distinction between incentivising the states and coercing them. In South Dakota v. Dole, for instance, the Court upheld the threatened withdrawal of 5% of a state's highway funding if it didn't adopt a drinking age of 21 or higher in part because the money at issue was a small amount. This strikes me as inappropriate, if for no other reason than that it invites endless subjective guesswork as to where the line between an incentive and compulsion lies. The Court should rather say that Congress cannot threaten a state in any way, or bribe a state in any way, to legislate in the way Congress wants, because states are not administrative divisions. This approach would involve overturning Dole, for instance, and striking down any other examples of Congress providing modest financial incentives for state acquiescence in Congressional policy-making.

Note that, under this approach, the one thing Congress would be allowed to do would be to give states money with conditions attached that pertain exclusively to the disposition of those dollars. It's possible that this would have to be limited to things Congress could've done by itself anyway, i.e. Congress couldn't offer to pay a state's whole law enforcement budget so long as those dollars were used to enforce all and only those criminal laws Congress wanted enforced. But if, say, Congress could have just established a national health insurance system for poor people and run it out of an office in Washington, D.C., but instead offers to each state the opportunity of administering that program itself with substantial federal funding, that's fine. Why? Well, in part because I think the logic of "Congress can spend money, Congress can not spend money, therefore Congress can spend money iff it wants to" is strong enough that it has some validity even if we're upholding the right of states not to be administrative divisions. But also because, so long as the conditions really do apply only to the disposition of the individual dollars that the United States Treasury is handing the states, the transaction is isolated from the rest of what the state does. The existence or non-existence of Medicaid doesn't touch a state's criminal laws, or its marriage laws, or its educational system. So under either approach I'd uphold the recent Medicaid expansion, contra John Roberts; a large part of his point in striking at that expansion was that, even though the conditions were only about the disposition of specific federal dollars, there were enough dollars that states didn't have a realistic choice. To my mind that doesn't matter one way or another; the question is whether Congress is threatening or bribing states to do things unrelated to the terms of the threat/bribe.

Also note that, under the first, more permissive reading, Congress would probably still not be able to simply issue commands to states. It doesn't look to me like there's anything much in the Constitution authorizing such commands, and it's well recorded that the use of such commands to states under the Articles of Confederation was a disaster that the new Constitution was designed to move away from. So I think the holdings in New York v. United States and Printz v. United States, both of which did concern explicit commands to state governments, would probably still hold under either interpretation (although under the latter principle, New York might've needed to go further, and strike down more of the incentives involved). The one possible exception to this limit on Congress would be the Necessary and Proper Clause, which could be seen as authorizing commands to states when necessary and proper to doing something else. Perhaps, and I'm willing to believe that in a proper emergency situation that could be true, but I have a feeling that it would be a rare event that would make such commands truly necessary and proper to carrying into execution one of the federal government's powers.

But the Court has chosen neither of these sensible paths. Instead, states have some rights against being coerced, but it's okay if it's only a "modest financial incentive," even if the incentive is completely unrelated to the subject being incentivised, but Congress can't necessarily exercise control over the disposition of dollars it hands to the states, if there are enough dollars involved to constitute coercion. It's just a whole bloody mess, with absolutely no constitutionally defensible principle guiding the Court in this area. Pick a side, Congress: the unfettered operation of Congress' enumerated powers, or the states' rights against being made into administrative divisions by any means?

*This is someone's term, possibly Akhil Amar's, for all the individual-rights provisions of the Constitution in the aggregate. That's Article 1, Sections 9 & 10, along with Amendments 1-10, 13, 14, 15, 19, 24, and 26.