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After having my brain twisted into a pretzel reading yesterday’s
ObamaCare decision, I was as disturbed as anyone. I mean, I had spent
most of my life thinking I knew the difference between a “penalty” and a
“tax,” and it turns out I was just fooling myself. Not to get too
existentialist about this, but it has really made me question
whether anything I think is real truly is.
Anyway, I eventually discovered what might be a small silver lining
in the ruling, at least for education: the Medicaid section might have
begun to place some, very nebulous, boundary on the ability of the
federal government to bribe states into adopting federal rules. That has
been the primary mode by which Washington has taken over elementary and
secondary education—think No Child Left Behind, Race to the Top, No
Child Left Behind waivers—and this ruling says there is a constitutional
limit to what the federal government can do to coerce state
action though spending.
Essentially, whether or not Spending Clause coercion is
unconstitutional depends on whether it constitutes “undue influence” on
states. For Chief Justice Roberts, that line was crossed when the Feds
changed the rules for Medicaid and threatened states with the loss of
all their funding if they didn’t follow the new strictures.
Obviously this doesn’t give us anything approaching a bright line on
the limits to Spending Clause use. Such a limit surely can be found—no
spending is allowed not connected to one of the specific, enumerated
powers given to Washington by the Constitution—but Roberts writes that
“Congress can use [Spending Clause] power to implement federal policy it
could not impose directly under the enumerated powers.”
So why bother with enumerated powers? Got me…
Addressing education directly, the conservative justices noted that
compared to Medicaid, federal education funding is a relatively small
share of total spending, casting doubt on how applicable the ruling
might be. In contrast, it was very gratifying to see those justices make
a point I’ve made repeatedly, especially when discussing the absurd
assertion that adopting national curriculum standards has been voluntary. Even
if adoption were technically voluntary for states, taxpayers in those
states have had no choice about paying the taxes that fund
multi-billion-dollar carrots such as Race to the Top. Indeed, the
conservatives write, were a state to fail to meet conditions attached to
Spending Clause bucks, not only would it lose access to federal
funds, it would likely have to raise its own taxes to make up for the
shortfall, taxes that “would come on top of federal taxes already paid
by the State’s citizens” for the spurned federal program.
The teensy bit of good news out of this ruling is that there is some
limit to how coercive Washington can be under the Spending Clause, the
clause that has been the linchpin of federal education policy.
Unfortunately, the new problem is that were the Spending Clause avenue
eventually cut off, Congress could probably just threaten the residents
of recalcitrant states with some sort of financial penalty…er…tax. I
mean, penalty…
Oh, my existentialist crisis!
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