Beyond Separation in Federalism Enforcement : Medicaid Expansion , Coercion , and the Norm of Engagement

National Federation of Independent Business v. Sebelius may be known, in both the popular and academic commentaries, as the case about the Affordable Care Act’s Individual Mandate provision. History may record it as one of the most significant cases in the jurisprudence of cooperative federalism. In invalidating part of the Medicaid Expansion provision, the Roberts Court became the first to invalidate a federal spending statute as unconstitutionally coercive of state governments. This decision has the potential to impact federal-state cooperative arrangements such as No Child Left Behind, and others far beyond the health care context. This Article argues that lack of attention to the Medicaid challenge, and the judiciary’s previous inability to articulate a framework for coercion, indicates the inappropriateness of our dominant conceptions of federalism enforcement for an age of cooperative governance. To the extent that claims of coercion require us to take into account the national-state interaction over time, they offer the opportunity to transcend current frameworks in federalism enforcement, which disregard the bureaucratic dimension of policy implementation, and operate under a separatist paradigm with respect to national and state authority. Unfortunately, the Supreme Court’s decision in National Federation exemplifies the extent to which federalism enforcement continues to be dominated by each of these conceptions of federalism enforcement. As a result, federalism enforcement remains institutionally and temporally truncated, focusing solely on Congress and legislative enactment to * Associate Professor of Law, University of Miami. I thank Dean Trish White for providing financial and intellectual support of this project, and my other research endeavors. I would like to thank my colleagues at the University of Miami, who allowed me to present an early version of this Article at the Faculty Workshop Series. Thanks also to the Second Annual Constitutional Law Colloquium at Loyola University Law School, Chicago for allowing me to present the Article, as well. Special thanks must go to Susan Bandes, Sergio Campos, Patrick Gudridge, Frances Hill, Osamudia James, Dennis Lynch, and Susan Stefan for helpful suggestions and criticisms of this Article at earlier stages in its production. Beyond the University of Miami, I would also like to thank Bernadette Atuahene, Jamelle Sharpe, Nicole Huberfeld, Craig Jackson, Kurt Lash, Gera Peoples, and Erin Ryan for comments on earlier drafts of this Article or discussion about the arguments herein. I would like to thank the editorial staff of the University of Pennsylvania Journal of Constitutional Law for their dedication in readying the Article for publication. Very special thanks must go to Barbara Brandon, who has performed extraordinary research assistance on congressional debates and information on regulatory programs. Thanks to Patrick McCardle, Andrew Leedom, Charlotte Joseph, and John Thornton for extraordinarily helpful assistance and their commitment to this project. To my teachers who remain my models of commitment, Cornelia Fair, Marie Benoit, Kenneth LaFrance, and Leo Laventhal. 92 JOURNAL OF CONSTITUTIONAL LAW [Vol. 15:1 the exclusion of administrative agencies and post-enactment policy implementation. In this framework, the unrealistic norm of separation reigns supreme. This Article argues that a norm of engagement better exemplifies the relationship inaugurated between states and the national government in the context of cooperative federalism. Medicaid in particular stands as a model of the embedded interactions between states and the national government. This engagement of policy implementation takes place in administrative agencies. The national-state relationship at the agency level involves repeated interaction aimed at the achievement of policy objectives. These repeated interactions demonstrate the need for a norm of federalism enforcement that exemplifies the ways in which states and the national government remain vulnerable in their interaction with one another. Such a norm is available by looking to administrative agency practice and administrative law doctrine. This norm is capable of reorienting Tenth Amendment jurisprudence, and federalism enforcement, more broadly.