In her remarks at the 2011 Annual Meeting of the Association of American Law Schools (AALS), Professor Gillian Metzger of Columbia University Law School offered an interesting critique of the Spending Clause claim now being pursued by a majority of the states in the United States in the constitutional challenge to health care reform. The states claim that the changes to Medicaid are beyond the power of Congress to effect constitutionally under the Spending Clause of the United States Constitution because the changes are coercive and also violate the "general restrictions" identified by the Supreme Court of the United States in South Dakota v. Dole.
Professor Metzger's overriding point that the Spending Clause claim will be a "very hard sell" has subsequently been borne out by Judge Roger Vinson. Though holding the individual mandate to be unconstitutional, Judge Vinson also ruled against the states' Spending Clause claim in Florida ex rel. Bondi v. U.S. Department of Health & Human Services on January 31, 2011. When Professor Metzger made her remarks on January 7, 2011, days before Judge Vinson's decision (the first decision on the merits of that claim by any court hearing a challenge to health care reform), she correctly predicted the general outcome of the first judicial review of the states' Spending Clause claim. Professor Metzger argued that the coercion claim is undermined factually to the extent the costs of Medicaid's changes will be disproportionately shouldered by the federal government, not the states. Professor Metzger also suggested that the final design of health care reform reflected compromises that in some ways acceded to state interests and federalism, even if the states were not at the table. As to the latter point, however, she did not articulate specifically how health care reform acceded to state interests-perhaps because, with twenty-six states suing in this action alone, that is a tough case to make.
David G. Oedel, Crossing the Constitutional Line in Spending From Persuasion to Compulsion: A Reply to Gillian Metzger, 62 Mercer L. Rev. 639 (2011).