Starting to think about the potential collateral consequences of the health care ruling, I think it is very likely that one of its major impacts will be to revive claims that several significant civil rights statutes, enacted under Congress’s Spending Power, are unconstitutional.

In the health care decision, the Court held that Congress exceeded its Spending Clause authority by forcing states into an all-or-nothing choice by threatening to revoke all of their Medicaid funding if they did not participate in the Medicaid expansion.  A decade or so ago, several states made similar challenges to a number of important civil rights statutes that condition receipt of federal funds on the state’s agreement to abide by non-discrimination principles in the federally funded programs.  These statutes include Title IX (sex discrimination in federally funded education programs), Title IV (race discrimination in any federally funded program), and the Rehabilitation Act (disability discrimination in federally funded programs).   States argued that by threatening to take away all of a program’s funds if the State’s didn’t agree to abide by these statutes, Congress was engaging in unconstitutional coercion.

Mostly, the states were arguing not so much that the anti-discrimination mandate was unconstitutional, but that the states were unconstitutionally coerced into agreeing to waive their sovereign immunity and submit to private lawsuits by individuals alleging discrimination in violation of the federal statutes.  But the coercion claim would have applied equally to the requirement to refrain from discrimination in the first place.

All of these challenges failed.  But it seems likely that many will now be revived.  States can now point to the Supreme Court’s striking down of the Medicaid Expansion for support for the proposition that the coercion doctrine — which had been mentioned but never enforced by the Supreme Court in prior decisions — is real and has teeth.  And they can look to the majority and dissenting decisions for guidance on what counts as unconstitutionally coercive.

This does not mean they will succeed.  To be honest, I find the opinions to be remarkable thin on doctrinal guidance.  The Justices mostly adopted a “we know it when we see it” theory of coercion in this case.  The lower courts are going to have to spend a lot of time trying to turn the Court’s gut reaction into a set of legal principles.

But two aspects of the Medicaid Expansion were particularly troubling to seven of the nine Justices — (1) the law threatened to take away all of what was a very large amount of funding upon which states have become reliant, and (2) as the Justices saw it, Congress was threatening to withhold funding for one program (the old Medicaid program) for non-compliance with the rules of a separate program (the new Medicaid expansion program).

These two factors point both ways with respect to the civil rights statutes.  Often, the statutes apply to programs that receive many millions of dollars in federal aid, all of which is theoretically at risk if the State refuses to promise to abide by the required non-discrimination principles.  On the other hand, unlike the Affordable Care Act — which seemingly required the federal government to withhold all funds if the state refused the expansion — I believe that the civil rights statutes permit the government discretion in setting the amount of the withholding for non-compliance.  (Although I am not sure what would happen if the state refused, at the outset, to agree not to discriminate).  At oral argument, Justice Breyer suggested that such enforcement flexibility (which he proposed to read into the Affordable Care Act) would save the statute from being unconstitutional on its face.  What would be unconstitutional is a disproportionate response to violations, rather than requiring the states to agree to the funding conditions in the first place.

Second, the civil rights statutes tend to operate program-by-program (although the definition of “program” is fairly broad).  So, for example, a state does not risk losing its transportation funding if it discriminates in a scholarship program.  So the civil rights statutes arguably do not pose the problem of threatening one program for non-compliance with the rules of another.  In addition, the program-by-program limitation reduces the amount of funding at issue which, while large, is significantly smaller than the amount of money at issue in the Medicaid program.  And the Court seemed to take pains to emphasize that Medicaid’s vastness put it in a field by itself.

Finally, like the Affordable Care Act, it is possible to argue that the civil rights statutes are supported by more than one federal power — as applied to state and local governments, they may be valid exercises of Congress’s power to enforce the Equal Protection Clause of the Fourteenth Amendment; as applied to private entities, they may be valid Commerce Clause legislation.  But defending the laws on those grounds has its own difficulties.

In the end, I would be surprised if the Supreme Court ended up striking down any of these civil rights provisions.  But I would not be surprised to see some lower courts holding the statutes unconstitutional, and I would shocked if states did not ask them to do so.

Posted in Health Care

Recommended Citation: Kevin Russell, Civil rights statutes put at risk by health care decision, SCOTUSblog (Jun. 29, 2012, 9:54 AM), http://www.scotusblog.com/2012/06/civil-rights-statutes-put-at-risk-by-health-care-decision/