Saturday, November 8, 2014

States’ rights—to block the flow of federal funds to their citizens? //Fishkin // Balkinization

The Supreme Court has agreed to accept King v. Burwell in which the 4th Circuit Court of Appeals holds that the Affordable Care Act allows health insurance subsidies only where a state has set up its own exchange.  Shoppers at would be S.O.L. if they live in a state where the Governor or Legislature did not set up a health care exchange.  

Why did the Supreme Court (at least four justices) vote to accept the challenge to citizens' right to received a federal subsidy for health insurance under the Affordable Care Act?  Do they hate Obama that much? Do they want implement the GOP agenda that the Party has so far been unable to achieve by political means?  Why should a state government be allowed to block its citizens from receiving federal health insurance subsidies?

When I contemplate the rejection in NFIB v. Sebelius of the measures virtually compelling states to accept Medicaid expansion; and the gutting of the Voting Rights Act in Shelby County v. Alabama, I think of John C. Calhoun and nullification, and the Constitution of the Confederate States of America which in its preamble declared:
We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America."
Under these views the fundamental sovereignty is in the states.  The federal government's enumerated poers contain the unwritten phrase "this far and no further".  The federal government is not a government created by the entire people (contrary to the plain meaning of McCulloch v. Maryand).  Rather it has only  narrow, contractarian authority, but the fundamental sovereign power to manage the pubic health and welfare commonly called the "police power" - gwc
Balkinization: States’ rights—to block the flow of federal funds to their citizens?
by Joey Fishkin
 "...But fundamentally, what interests me is this question: what so attracts some Justices about giving states the power to interpose themselves in between the federal government and their own citizens in this way?   What is so seductive, in the end, about giving states the power or right to block the flow of federal funds for health insurance?  I don’t have the answer and I think it deserves some serious thought.  I wonder if the right lens through which to view the King challenge is not NFIB at all, but Shelby County.
That is, perhaps there is some sort of notion of the sovereign dignity of the states at stake here—a view that states generally ought to have the power, or perhaps I should say the right, to choose whether or not to accept controversial bundles of federal funds.  Of course, there is a third party here: the citizen.  And so what we’re really talking about is the state's right to stand in the way, interposing itself to block the flow of federal funds to their intended recipients.
 Or perhaps, finally, it is a combination of (2) and (3) above: an idea that even if the federal government has not embraced a neo-Lochnerian libertarian constitutional vision, we ought to make darn sure that individual states retain the power to embrace such a vision, rather than being saddled with a fundamentally different social model—one with more social insurance—imposed by the federal government. Either way these are exceedingly strange principles to see bubbling around just beneath the surface of the questions the Court is ostensibly grappling with in King."

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