David Kopel and Rob Natelson are internationally known experts on Constitutional law at the Independence Institute. They have submitted an amicus brief on the Medicaid mandate currently before the Supreme Court in State of Florida v. Department of Health and Human Services, et al. Rob Natelson provides his summary of the brief.
Based on a close reading of founding era documents, they argue that ObamaCare’s mandate to expand Medicaid eligibility levels or lose all Medicaid funding is unconstitutional. The “Founding-Era record reveals a specific understanding that especially in the area of social services, the states could make free decisions, uncoerced by the federal government.” Given that Medicaid has eliminated huge numbers of state and local programs designed to help those most in need with what is arguably among the most expensive and most poorly run programs in the federal government, the Founders may have had a point.
In support of their argument Kopel and Natelson quote Trench Coxe, a “particularly prominent Federalist spokesperson” who wrote of the exclusive state power to “establish poor houses, hospitals, and houses of employment.” They provide quotes from Chief Justice John Marshall who asserted that “health laws of every description” are exclusively within the state, and outside the federal, sphere. The Chief Justice also explicitly repudiated the notion that “commerce…among the several states” could be construed to comprise health laws.
On fiscal matters, the anti-Federalists were well aware that Congressional fiscal powers could be used to “fatally impair” state financial integrity. Anti-Federalist “Brutus” wrote that “…The legislature of the United States will have a right to exhaust every source of revenue in every state…unless therefore we can suppose the state governments can exist without money…we must conclude they will exist no longer than the general legislatures choose they should.” Federalists responded that the states would retain independence because the Constitution left “the local concerns of state, or the necessities of particular districts…under the direction of the states individually.”
They go on to discuss what the Constitution means when it refers to state sovereignty, what the constitutional concept of “independence” refers to, and why ObamaCare places state budgetary decisions at the “boundless discretion of federal bureaucrats.”