Interesting argument.

First of all, I couldn't remember if the bit about "the general welfare" appeared only in the preamble (in which case it would be guidance, programmer's notes rather executable code, if you will) or both in the preamble and the actual Constitution; it's both. The taxing and spending clause of Article 1 mentions that monies will be spent "for the general welfare."

Barnett's and Oedel's argument here is persuasive, but it sort of requires text plus logic to get to his interpretation; liberal judges will of course resist adding in that logic, and claim that anyone who says otherwise is guilty of "judicial activism" (!!!), adding stuff to the Constitution. But this is certainly reasonable inference -- if words appear in the Constitution, they're supposed to mean something, and not mean nothing at all, as a resistant liberal will claim. The words didn't just appear there as filler. They had a point, we can assume.

The basic argument is that ObamaCare's Medicaid mandates for states plus the opt-out is coercive and violates the General Welfare clause, because if a state did exercise its right to opt out, its money would flow to Washington (and other states) without anything in return. The money would therefore decidedly not be spent for "the general welfare," as any state opting out would not have its welfare improved at all (and would in fact be reduced, as billions flow out of it to benefit the citizens of other states).

He also makes this argument with regard to the Cornhusker Kickback -- a special Nebraska-only benefit to secure the vote of one Ben Nelson of Nebraska, a situation in which dollars flow to Nebraska (to make up for their non-contribution to the costs of the program) from other states.

This is actually a rather important idea. The Cornhusker Kickback violated many people's sense of fair play, but I think many of us couldn't quite explain which rule of fair play it violated. The danger of the maneuver was clear -- if you can bribe individual states' citizens to go along with federal programs, you can create different tiers of states, with some citizens having more rights than the citizens of others, which seems, certainly, to violate the basic idea of equality in the eyes of the law.

Barnett and Oedel sharpen this up a bit, I think, by offering a more specific command of the Constitution such schemes can be said to violate. Money spent in this way is not for the General Welfare, but for the particular welfare of the citizens of one state (and not others), and thus is impermissible.

Like I said, interesting. And certainly, I think, the Constitution should stand for such an idea. Without such a command, it is quite possible that a blue state president with a blue state Congress could simply reduce taxes and other burdens on the blue states alone and hike them punitively on the red states. Some would say that will never happen, as that would spark a new civil war, but I'd like to think the Constitution itself has something within it to restrain violations of such blazing injustice such that civil war isn't necessary to retain basic fairness.

It's Old: Gabe ably covered this yesterday.

I thought this argument, while attractive, was a bit of longshot, but as Gabe mentions it just might fly:

From a litigators' perspective, this argument of Barnett's is strategically attractive because the Dole restriction, discussed in the WSJ piece, is relatively unfleshed by the courts. This case is absolutely headed for the Supreme Court and justices hesitate to overturn precedent. Dole's very vagueness gives them (ahem, Kennedy) room to maneuver because ObamaCare says 100% of Medicare dollars will be withheld from states that opt out. The justices won't have to decide a sticky question about just how much is too much coercion; it's relatively easy to say that 100% is too much.

Yes, judges don't like laying down categorical forbiddances (i.e., you can never spend more on one state than another) and try to avoid fine-tuning line-drawing about where the threshold of forbiddance is reached, as that just leads to lots and lots of litigation and more and more decisions.

That said, as Gabe notes, it's a relatively easy thing to say, in one decision, that seizing 100% of the money a state spends for one purpose to distribute it to other states is unconstitutional. Later cases may be more difficult -- how about a 25% penalty? How about a 10% penalty? -- but the 100% fuck-you confiscation is itself rather easier to call bullshit on.

Posted by: Ace at 09:31 AM | Comments (44)
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