Wednesday, September 28, 2011

States file cert petition in Florida v. HHS

The other plaintiffs in Florida v. HHS -- the twenty-six participating states -- have now filed their own peititon for a writ of certiorari at the Supreme Court. Here are the three questions presented by the petition, as stated on page i:
1. Does Congress exceed its enumerated powers and violate basic principles of federalism when  it coerces States into accepting onerous conditions that  it  could not impose  directly by threatening to withhold all  federal  funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending  power that this Court  recognized in  South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?
2. May Congress treat States no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or has Garcia's approach been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress‘s power to interfere with state sovereignty? 
3. Does the Affordable Care Act‘s mandate that virtually every individual obtain health insurance exceed Congress‘s enumerated powers and, if so, to what extent  (if any) can  the mandate be severed from the remainder of the Act?
Pretty interesting that the states are actually seeking a reconsideration of Garcia in question 2--an issue that has not really been in play (or at least the topic of much discussion) to this point. This might reflect their conclusion that a straight-up coercion argument might be a pretty difficult sell. Some give in Garcia, though, might permit a  conclusion that the ACA's Medicaid amendments violate the principles of state sovereignty, even if they do not amount to "compulsion." In their petition, the Garcia issue is only raised with respect to the employer mandates (and their application to the states). So perhaps there is no connection. But it sure seems that the abandonment of Garcia -- and a reinvigoration of the National League of Cities principle that states must be treated differently for purposes of imposing federal regulation -- might be a way to invalidate the Medicaid provisions without finding them "coercive" per se. (Or perhaps this is just an instance of making sure you ask for more than what you are likely to get, to make what you really want appear less dramatic by comparison.)

Maybe the plaintiffs sensed that the United States would be filing its petition today, and wanted to seize the initiative? Just a guess.

You can access the states' petition here.