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I n t h e C o u r t s The analogy to the health care decision is nonexistent and the argument lacks merit Texas Unconvincing in Clean Air Suit O n law school exams, I often reward students for creativity , even if their legal argument may ultimately lack merit. After all, they are still students and not yet judges responsible for the actual resolution of legal issues. That is why I would have likely given high marks to a student exam that argued, like Texas lawyers before the D.C. Circuit in Utility Air Regulatory Group v. EPA, that the Supreme Court's recent ruling in National Federation of Independent Business v. Sebelius means that EPA violated the 10th Amendment when it notified 13 states of the legal consequences under the Clean Air Act of not revising state programs to regulate greenhouse gas emissions from certain stationary sources. But there is still no merit to that argument. To be sure, the NFIB ruling was extraordinary. Five justices concluded that the Affordable Care Act's mandate that individuals purchase health-care insurance (or pay a fee) was a valid exercise of Congress's taxing authority. The majority reached this result even though Congress had made clear it was acting pursuant to its Commerce Clause authority, which five justices said did not authorize the mandate, and the president had repeatedly rejected accusations that the mandate was a tax prior to its enactment. Chief Justice John G. Roberts Jr. also defied Court soothsayers by casting the deciding vote that saved the mandate. But the NFIB ruling upon which Texas relies pertains neither to the Commerce Clause nor to Congress's taxing authority. Texas cites instead to the Court's conclusion — expressed in an opinion by the chief justice joined by Justices Stephen Breyer and Elena Kagan and a separate joint opinion signed by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito — that the act's Medicaid expansion violated the 10th Amendment by denying a state all of its existing Medicaid funding if it declined to agree to the expanded program. According to the chief justice , this was impermissibly coercive because states would have to give up 20 percent of their existing budget — the average supplied by existing Medicaid programs — to decide not to agree to the new program. Such a threat amounted to pointing a " gun to the head " …