Sponsored Content
« Florida Couple Victimized By Spike Lee Hires Law Firm
MSNBC Deliberately Clips Zimmerman's Statements To Suggest He's Racist
| Main | The Poetry of Jose Canseco »
March 28, 2012

Justice Breyer Stunned & Butthurt To Learn That The Federal Government Really Does Threaten To Withhold All Funds Unless Their Orders Are Obeyed

I haven't seen anyone call this out. It's surprising, because Breyer is of course an all-out Obamabot liberal, and has been carrying the administration's water in this case for three days running.

But here, he learns that one of his assumptions -- what he'd already decided he'd base his decision to uphold ObamaCare -- is in fact false. He sounds kind of angry to find out he's wrong.

Here's the context: The argument concerns whether the Secretary of Health may cut off all Medicaid funds if states do not follow the federal government's order to greatly expand Medicaid to cover the young and able-bodied.

Because the Secretary could cut off all funds -- billions and billions -- if its orders were not followed, the challengers of the law say it's "coercive," as a legal matter, and hence unconstitutional because the federal government coercing the state governments is incompatible with the idea of federalism, independent state governments, and state sovereignty.

Now, Breyer assumes two things:

1, that the Administrative Procedure Act (the APA) would forbid a Secretary from actually doing this, as he feels that act contains a requirement of reasonableness in the Secretary's actions, and,

2, that no Secretary has ever actually threatened a state with this, or ever would. That is, that while this is hypothetically something the Secretary could do, no Secretary ever has or ever will. So it's all just silly.

Now what happens is that a letter is presented by Clement, written by the Secretary of Health (I think) to the state of Arizona, threatening a total cut-off of funds. (I think -- maybe the letter was about the immigration law. Point is, it threatened a cutoff of funds.)

Later, Verilli refuses to say that Obama's Secretary of Health wouldn't do the same if states refused to comply with ObamaCare's Medicaid expansion.


And then Breyer sounds butthurt that this letter undermines the assumption he was trying to advance as a reason to uphold the law.

To hear the exchange, download the file. The exchange starts around 57:25. That's not Breyer at first; it's Roberts. But start there for context.

Breyer starts in with his big booming sing-song pretentious affected voice at 58:49 and continues back and forth for a couple of minutes after that, until around 1:02.00. He asks "Why are you so reluctant?" to simply state the Secretary would never take such a step. Verrilli won't guarantee that.

He also sounds like he's begging Verrilli to just say what Breyer wants him to say so he can base his decision on it.

One point that's made is that it doesn't matter if the Secretary actually has ever cut off funds; simply being able to threaten it is itself coercive.

Corrected: I originally said Verrilli admitted that the Secretary might cut off all funds, or threaten to. Actually, Clement introduced the letter mentioned. Then Verrilli was asked about it.

The Legal Framework: Let me explain this -- I just had a big refresher myself.

The government can only do some things according to the Constitution. A great many things it can't do.

And yet it does them anyway. It does so by creating a "voluntary" partnership with the states, then provides money for the states to do what the federal government says they should do.

This is how the enumerated powers idea is evaded.

It is said that Congress' spending power is plenary and unlimited (boy, is it ever!!) so it has a lot of power there. It can spend if it likes -- and if it wants to bribe states to do things, then it can do that.

A limitation on this power, however, is that Congress cannot do through the spending power what it would be forbidden to do by other parts of the Constitution. It cannot give orders to the states -- the state governments are not inferior governments, taking orders from the central one.

So if a so-called "spending" power exercise achieved via a "voluntary" partnership with the states is actually coercive -- it violates the whole idea that the federal government may get involved in state business only if the state voluntarily agrees to it.

The challengers' argument is that the Medicaid expansion -- in which the Secretary of Health may cut off all funding for states if they do not participate -- is coercive. The fig leaf of it being "voluntary" is stripped away, and it is revealed that the federal government is simply doing what it is forbidden to do -- give orders to inferior state governments.

digg this
posted by Ace at 06:46 PM

| Access Comments

Recent Comments
polynikes: "Posted by: Tom Servo at June 10, 2023 12:09 AM (S6 ..."

InZona: "I used to wonder how they quickly changed equipmen ..."

Tom Servo: "Buckaroo Bonzai was an almost-great movie. I pond ..."

Mr Aspirin Factory: "Friend of mine has adopted two kids. Rather, he s ..."

polynikes: "I handled my first Texas WC fatality the first wee ..."

BigMeanie: "You publish a story about a woman in South Korea m ..."

Thesokorus: " Thesaurus - Buckaroo Banzai is a great flick. And ..."

18-1: "There are no leftwing libertarian and can never be ..."

scampydog: "271 First warehouse job I had, we used the pallet ..."

Pedo Bill Clinton: "[i]The reason Nazis and Commies fight each other s ..."

Tom Servo: "On the topic of great B movies - just finished rew ..."

Tonypete: "I was adopted and I still thank the good Lord each ..."

Recent Entries

Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
Powered by
Movable Type 2.64