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 Courts 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 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 cooperativefecleralism. 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.
Charlton C. Copeland, Beyond Separation in Federalism Enforcement: Medicaid Expansion, Coercion, and the Norm of Engagement, 15 U. Pa. J. Const. L. 91 (2012).