John Roberts on health care, Jerry Brown on NCLB: similar logic
Benjamin Riley
Last weekthe Supreme Court issued its ruling on the constitutionality of the Affordable Care Act, or as I like refer to it, "Federal RomneyCare." While the majority of coverage and interest in the example centered around the ACA's "individual mandate," a somewhat lesser known effect involving Medicaid has interesting implications for federal and state education policy, particularly in California.
Before getting to that, a quick refresher on health intendance policy. Medicaid is a cooperative federal/state plan whereby the federal regime sends money to states so that the states may provide health intendance to certain vulnerable groups – for example, the blind, the elderly, and the disabled. The ACA as drafted required states to expand the Medicaid program to comprehend all individuals below the age of 65 with incomes beneath 133% of the federal poverty line, thus extending health-intendance coverage to 17 meg previously uninsured Americans. If a state refused to expand Medicaid in this fashion, the ACA empowered the Secretary of Wellness and Human Services to withhold all of the country'south Medicaid funding.
Not anymore. The Supreme Court struck down this portion of the ACA on the grounds that it imposes an impermissible status upon the receipt of federal funds that "coerces" states into expanding Medicaid against their will. In the words of Chief Justice John Roberts, "the financial 'inducement' Congress has chosen is much more than 'relatively mild encouragement' – it is a gun to the head." Consequently, states may decline to expand their Medicaid coverage, and Congress cannot change their minds by threatening to take away existing Medicaid funding. "Congress may not only conscript country agencies in the national bureaucratic army," Justice Roberts ended, "and that is what it is attempting to exercise with the Medicaid expansion."
The Elementary and Secondary Pedagogy Act, aka No Child Left Backside, is a federal/country cooperative plan based on the same constitutional authorisation as is Medicaid (namely, the Spending Clause). Equally with Medicaid, the federal government sends funds to states to support K-12 education efforts, in return for states like-minded to comply with certain conditions – for example, that states use the majority of their funds to support schools in low-income areas. Given the parallel structure of Medicaid and ESEA, I believe the invalidation of the Medicaid expansion calls into further question the waivers thdue east Obama administration is currently issuing to states to salvage them from complying with the law.
To meet why, permit's begin with a closer reading of Chief Justice Roberts' opinion. Roberts, relying upon a prior Court decision known as Pennhurst, wrote that while "Congress' power to legislate under the spending power is broad, it does non include surprising participating States with postacceptance or 'retroactive conditions.'" And even though the Medicaid statute expressly states that Congress may change or ameliorate the law, Roberts believes that Congress's reservation of that right does not include "the power to transform [Medicaid] and then dramatically." Thus, equally Justice Ruth Bader Ginsburg adroitly notes in her opinion, "the Chief Justice appears to find in Pennhurst a requirement that, when spending legislation is first passed, or when States first enlist in the federal program, Congress must provide clear detect of weather it might afterwards impose."
It is not hard to draw a line from this straight into the heart of ESEA waivers. For if Congress's authorisation to adhere conditions to federal grants is limited, and clear detect must be provided in advance, then surely the authority of the Executive Branch to impose "postacceptance" weather condition on federal funds is equally if not more than circumscribed. The fact that the Department of Pedagogy is conditioning waivers upon states implementing teacher-evaluation systems – a requirement found nowhere in ESEA itself – is farther evidence of waivers' "retroactivity." Nor is it a stretch to believe that the waivers "dramatically" transform ESEA, insofar as they essentially gut the cadre federal bookish accountability requirements the law imposes. Given my view that waivers were already of suspect legality, the Court'due south invalidation of the Medicaid expansion adds further dubiousness as to whether they could survive a ramble claiming.
Still, while Chief Justice Roberts strengthened the legal ability of states to push back on the demands of the federal government, he too appears to chastise states for rolling over so speedily to federal demands. "The States are split and independent sovereigns," Roberts wrote. "Sometimes they accept to act similar it." I couldn't aid read that passage and think of California, a state that – when it comes to education policy nether Governor Jerry Brown – has certainly acted similar an independent sovereign. Indeed, the State Lath of Education that Brown appointed and Superintendent Tom Torlakson have essentially ignored the new weather condition set by the federal Department of Didactics to instead develop their own home-grown waiver program nether another section of the NCLB law. Any the underlying claim of their proposal (and I have my reservations), the approach California has taken to developing its waiver proposal appears to neatly accordance with Justice Roberts' vision of proper federalism.
Having said that, a few caveats are in lodge every bit to the ACA determination's applicability to waivers and ESEA in full general. First, there is a dramatic divergence between threatening to withhold billions in Medicaid funding in lodge to change state policy versus offer conditional relief from a particularly unpopular school accountability measure. Second, while the federal contribution to land budgets for Medicaid is enormous, states are "far less reliant on federal funding for any other program," as noted in the joint dissent from the Court's bourgeois fly. Finally, I'grand at a loss to imagine how Congress is supposed to betoken in advance what sort of hypothetical changes information technology might one 24-hour interval propose making to a federal/state program and so states won't exist "surprised" – and I suspect federal judges will be equally befuddled. Or, every bit Justice Ginsburg asks, "when future Spending Clause challenges arrive, every bit they likely will in the wake of today'south decision, how will litigants and judges assess whether 'a State has a legitimate selection whether to have the federal conditions in exchange for federal funds'?"
We don't know how courts will answer Justice Ginsburg's question – just it may non be long before we notice out.
Benjamin Riley is the Director of Policy and Advocacy at NewSchools Venture Fund, a nonprofit system that supports education entrepreneurs. Previously, Ben worked every bit a Deputy Chaser General for the California Section of Justice, where he worked primarily on educational activity-related matters. He currently lives in Washington, D.C. but volition ane twenty-four hour period return to the Gilt State.
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Source: https://edsource.org/2012/john-roberts-on-health-care-jerry-brown-on-nclb-similar-logi/16829
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