Is ObamaCare’s Medicaid Expansion Constitutional?

David Kopel and Rob Natelson are internationally known experts on Constitutional law at the Independence Institute. They have submitted an amicus brief on the Medicaid mandate currently before the Supreme Court in State of Florida v. Department of Health and Human Services, et al. Rob Natelson provides his summary of the brief.

Based on a close reading of founding era documents, they argue that ObamaCare’s mandate to expand Medicaid eligibility levels or lose all Medicaid funding is unconstitutional. The “Founding-Era record reveals a specific understanding that especially in the area of social services, the states could make free decisions, uncoerced by the federal government.” Given that Medicaid has eliminated huge numbers of state and local programs designed to help those most in need with what is arguably among the most expensive and most poorly run programs in the federal government, the Founders may have had a point.

In support of their argument Kopel and Natelson quote Trench Coxe, a “particularly prominent Federalist spokesperson” who wrote of the exclusive state power to “establish poor houses, hospitals, and houses of employment.” They provide quotes from Chief Justice John Marshall who asserted that “health laws of every description” are exclusively within the state, and outside the federal, sphere. The Chief Justice also explicitly repudiated the notion that “commerce…among the several states” could be construed to comprise health laws.

On fiscal matters, the anti-Federalists were well aware that Congressional fiscal powers could be used to “fatally impair” state financial integrity. Anti-Federalist “Brutus” wrote that “…The legislature of the United States will have a right to exhaust every source of revenue in every state…unless therefore we can suppose the state governments can exist without money…we must conclude they will exist no longer than the general legislatures choose they should.” Federalists responded that the states would retain independence because the Constitution left “the local concerns of state, or the necessities of particular districts…under the direction of the states individually.”

They go on to discuss what the Constitution means when it refers to state sovereignty, what the constitutional concept of “independence” refers to, and why ObamaCare places state budgetary decisions at the “boundless discretion of federal bureaucrats.”

Comments (6)

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  1. Madeline says:

    I’m with Linda. I vote no.

  2. Devon Herrick says:

    I’m an economist rather than an attorney so I don’t pretend to have extensive knowledge of constitutional law. However, I find it to be a rather substantial incursion of federal power for the federal government to hold out the carrot of matching dollars funded by deficit spending to entice states to spend even more than they can afford.

  3. Brian says:


    Though something tells me that the court will uphold it.

  4. LetUsHavePeace says:

    Kopel and Natelson’s position understates the Constitutional objections. To limit the Federal government’s monopoly authority over legal tender, the Congress was given no authority to impose mandates – funded or otherwise – on individual states. Congress’ sole authority was over “national” matters. The entire justification for Obamacare rests on the provision in Article I, Section 8. that gives Congress the power to “regulate Commerce with Foreign nations; and among the several states, and with the Indian tribes”. That power of “regulation” was understood to mean that Congress could prohibit the States from creating obstacles to interstate commerce that were greater than the tariffs, excises and other regulations that the country had as a whole in its dealings with Foreign nations. It is a measure of the distortions that have been read into the Constitution that the meaning of this “commerce clause” has been inverted so that Congress somehow has the power to tell everyone in the country and the individual States what they should do about everything that involves spending or making money.

  5. Brian Williams. says:

    The problem is Congress doesn’t worry about the Constitution.

    The same might be said of the other two branches of government.

  6. Mark Glasgow says:

    Particularly compelling on this topic are the actual figures for the portion of state budgets that would be necessary to cover Medicaid’s current outlays without federal support. Many states would have to spend more than half their budgets on Medicaid, with some states in even worse positions (Medicaid spending in Arizona is roughly equivalent to the state’s entire budget). The impossible burden of covering these expenditures without federal support emphasizes the fact that states cannot afford to forfeit Medicaid assistance => PPACA Medicaid expansion is strictly coercive.