A Constitutional Opening

[Geee]

National Review:

Now that President Obama has won reelection, the states are grappling with implementation of the Patient Protection and Affordable Care Act of 2010. Last June, in NFIB v. Sebelius, the Supreme Court gave the act a mixed bill of constitutional health. It upheld the individual mandate by saying that it was constitutional under Congress’s taxing power. However, it also ruled that Congress could not compel the states to expand their Medicaid programs by threatening to cut off all Medicaid subsidies if they did not do so. Imposing onerous new requirements in a program that already represents such a large part of the states’ budgets that they can’t afford to lose federal subsidies, the Court ruled, is unconstitutional. This was the first significant limitation on the federal government’s power to use the strings attached to fiscal subsidies — “grants-in-aid,” as they used to be known — in order to make states implement federal policies.

Nearly all federal welfare programs are joint operations of Congress and the states. Congress sets the standards, and if the states devise programs that meet those standards, Congress matches, or more than matches, what the states spend on them. (Obamacare, in fact, has a “teaser” introductory rate that the new consumer-protection bureaucrats would surely outlaw if it were done by a private corporation: It picks up 90 percent of the tab for the early years of the program — an offer the states could not refuse, Congress assumed.)