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.

Okay?

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.

posted by Ace at 06:46 PM

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