Constitutional Impediments to National Health Reform: Tenth Amendment and Spending Power Hurdles

This Article proceeds in four Parts. The first briefly summarizes the approach of each of the pending health reform bills and distills those portions relevant to current Tenth Amendment and Spending Clause analysis. Provisions that would impose on States the financial and administrative responsibility for achieving Federal regulatory objectives or that specify punitive measures to be taken against States choosing not to participate in the cooperative program are critical features for the inquiry. Employing these criteria, the first Part identifies seven distinct and largely novel models of problematic regulatory instructions that warrant more probative analysis.The second Part briefly outlines the Court\u27s erratic path to New York and evaluates its approach for assessing whether Federal law unconstitutionally usurps State power in the service of national regulatory goals. National health reform raises again the substantive policy issue that has generated grave concern from constitutional scholars, who have divided into separate camps over the justiciability of the Tenth Amendment. In its latest decision, the Court has taken the route the dissenters in Garcia v. San Antonio Metropolitan Transit Authority predicted and found the Amendment justiciable in some respects, an outcome endorsed here. Although taking care not to overrule Garcia, the New York opinion identified one boundary beyond which the Congress may not tread though exercising otherwise legitimate commerce power. Moreover, the New York Court implicitly rejected the proposition that if Congress can legitimately preempt States from the regulatory field, any means it chooses to induce States to participate in the Federal-State cooperative venture is permissible. Thus, the greater power does not ipso facto incorporate the lesser. Finally, this Part hazards some thoughts in response to Professor Erwin Chemerinsky\u27s view that the new federalism jurisprudence does not serve any of the traditional values of federalism, offering a justification for New York\u27s conclusion while criticizing its reasoning.Part III turns to evaluate the seven problematic models of Federal regulatory instructions in light of New York and related precedent. This Article argues that some of these models fail under the Court\u27s current approach to the Tenth Amendment and others are open to serious question. Some modifications to pending bills may be warranted to ensure their constitutionality under the Tenth Amendment. Those models implicating primarily the spending power, rather than the Tenth Amendment, are substantially better insulated from constitutional attack. Some uses of this power, however, raise questions about the continuing adequacy of the Court\u27s deferential standard of review given their impact on republican citizenship and representative government

Arendt, Tushnet, and Lopez: The Philosophical Challenge Behind Ackerman\u27s Theory of Constitutional Moments

In his provocative article, Mark Tushnet asks whether United States v. Lopez signals a major constitutional shift in federalism-- specifically in the allocation of political and regulatory power between State and Nation. Tushnet uses the Lopez problem to test the adequacy of the political theory that Bruce Ackerman terms “dualist democracy,” delineated in Ackerman\u27s work in progress. Like many other reviewers, Tushnet finds Ackerman\u27s theory wanting in crucial respects.My response takes two tracks. First, I will argue that the import of Ackerman\u27s theory is better understood and evaluated when it is considered more as a work of political philosophy and political theory rather than as a work of law or jurisprudence. Ackerman should be understood as participating in two distinct conversations: The first, at the core of political philosophy, is concerned with the possibility for human freedom. The second is central to political theory, namely, what kind of governmental structures and organization will permit the realization of particular philosophical commitments. I think Ackerman is making startlingly original and valuable contributions in both realms. In the first part of this commentary, I will situate Ackerman\u27s theory most pointedly as a direct response to Hannah Arendt

Transcending Conventional Supremacy: A Reconstruction of the Supremacy Clause

Perhaps because the predominant strands of contemporary Supremacy Clause jurisprudence originate in two of the most venerable cases in the Court\u27s history, the Court and academics alike have sidestepped some of their problematic pronouncements. In Part I, this Article questions the legacy of McCulloch v. Maryland and Gibbons v. Ogden, finding their Supremacy Clause principles unacceptably nationalistic and hence unfaithful to the balance of the Constitution. While their centralizing tendencies may have been understandable during the nation\u27s infancy, their raison d\u27être has evaporated; the pendulum of state versus national regulatory power on matters other than individual liberties has swung too far. My objective is not to argue that all intergovernmental immunities are unjustified, or that federal preemption of state law is unauthorized. Rather, my focus throughout centers on whether these substantive claims are properly conceptualized as flowing from the Supremacy Clause. Part I also seeks to expose certain other analytic and textual difficulties that pervade the Court\u27s Supremacy Clause cases. Part II examines the Constitutional Convention records to assist in formulating the Clause\u27s proper function in the larger plan and in elaborating any limitations that deserve recognition. It concludes that the historical records support a narrow but important function for the Clause. Contrary to the Court\u27s jurisprudence, the Clause\u27s process-based regulative purpose is distorted by appending original claims to it. It cannot be properly read to confer additional national powers irrespective of the substantive provisions and limitations articulated in the balance of the Constitution

State Discretion Under New Federal Welfare Legislation: Illusion, Reality, and a Federalism-Based Constitutional Challenge

This article challenges the common characterization of the 1996 welfare reforms. States do not have the ability to do “almost anything they want.” Most notably, states with more compassionate political leadership who wish to counter the national trend may seek areas of flexibility in vain. The Act\u27s mandates and penalties will force all states into particular policies that they may not have chosen had Edelman been correct about the range of their discretionary powers.Edelman\u27s critique typifies the standard assessment of the Act. According to the prevailing view, the Act\u27s policies are objectionable because the federal government has capped the money it will make available for welfare spending, while concomitantly eliminating the personal entitlement to assistance. In so doing, the nation has ceded programmatic responsibility to the states via block grants so that states may structure and operate welfare programs as they choose.This article first provides a descriptive outline of the structure of the PRWORA, emphasizing provisions that accord the states new discretionary powers. In contrast, this article then shows by close attention to the details of the Act that the discretion afforded states is often illusory. In practice, the Act constrains states by subjecting their purportedly discretionary policy decisions to conservative policy norms. Given the length of the Act, this examination must be illustrative rather than exhaustive.Finally, this article demonstrates that states and their citizens need not passively accept these normative federal policy choices. Concerned state governments may make at least two distinct types of efforts to mend the social safety net. The first type of effort makes use of opportunities embedded in the interstices of the Act itself, e.g., the statutory waivers granted under the previous Aid to Families With Dependent Children (“AFDC”) regime. The second type of effort consists of legal challenges to the Act. Some jurisdictions and individuals have already filed claims predicated upon individual rights theories such as Equal Protection and Fifth Amendment Due Process. Because these areas of legal analysis have already received attention, this article focuses instead on Tenth Amendment and Spending Clause claims. Such analysis reveals that significant portions of the Act may be subject to invalidation under the Spending Clause, as informed by the values of the Tenth Amendment, which reserves for the states those powers not expressly delegated to the federal government

Book Review

The author reviews Federalism and Rights by Ellis Katz and G. Alan Tarr and To Make a Nation: The Rediscovery of American Federalism by Samuel H. Beer

Constitutional Impediments to National Health Reform: Tenth Amendment and Spending Power Hurdles

This Article proceeds in four Parts. The first briefly summarizes the approach of each of the pending health reform bills and distills those portions relevant to current Tenth Amendment and Spending Clause analysis. Provisions that would impose on States the financial and administrative responsibility for achieving Federal regulatory objectives or that specify punitive measures to be taken against States choosing not to participate in the cooperative program are critical features for the inquiry. Employing these criteria, the first Part identifies seven distinct and largely novel models of problematic regulatory instructions that warrant more probative analysis.The second Part briefly outlines the Court\u27s erratic path to New York and evaluates its approach for assessing whether Federal law unconstitutionally usurps State power in the service of national regulatory goals. National health reform raises again the substantive policy issue that has generated grave concern from constitutional scholars, who have divided into separate camps over the justiciability of the Tenth Amendment. In its latest decision, the Court has taken the route the dissenters in Garcia v. San Antonio Metropolitan Transit Authority predicted and found the Amendment justiciable in some respects, an outcome endorsed here. Although taking care not to overrule Garcia, the New York opinion identified one boundary beyond which the Congress may not tread though exercising otherwise legitimate commerce power. Moreover, the New York Court implicitly rejected the proposition that if Congress can legitimately preempt States from the regulatory field, any means it chooses to induce States to participate in the Federal-State cooperative venture is permissible. Thus, the greater power does not ipso facto incorporate the lesser. Finally, this Part hazards some thoughts in response to Professor Erwin Chemerinsky\u27s view that the new federalism jurisprudence does not serve any of the traditional values of federalism, offering a justification for New York\u27s conclusion while criticizing its reasoning.Part III turns to evaluate the seven problematic models of Federal regulatory instructions in light of New York and related precedent. This Article argues that some of these models fail under the Court\u27s current approach to the Tenth Amendment and others are open to serious question. Some modifications to pending bills may be warranted to ensure their constitutionality under the Tenth Amendment. Those models implicating primarily the spending power, rather than the Tenth Amendment, are substantially better insulated from constitutional attack. Some uses of this power, however, raise questions about the continuing adequacy of the Court\u27s deferential standard of review given their impact on republican citizenship and representative government

Documentation Assessment of the Diebold Voting System

The California Secretary of State commissioned a comprehensive, independent evaluation of the electronic voting systems certified for use within the State. This team, working as part of the “Top to Bottom” Review (“TTBR”), evaluated the documentation supplied by Diebold Election System, Inc

Voting and Registration Technology Issues: Lessons from 2008

This chapter reviews the 2008 field performance and the scientific assessments of both voting systems and the statewide voter-registration databases. The federal Help America Vote Act (HAVA) mandated each of these technologies. Despite definitive scientific studies that documented grave security deficiencies that can cause voting systems to produce inaccurate vote tallies and “winners” who actually had fewer votes, these systems continue to be deployed. The Chapter traces the regrettable decisions on election technologies to a poorly designed regulatory structure and staffing, which continue to underweight and misunderstand security issues in election technologies

Collaborative Public Audit of the November 2006 General Election

We hope that this Audit Report will assist the Ohio Secretary of State, all Ohio local Boards of Election, election reform organizations, and other election officials nationwide in seeing how an independent audit process can be created and function at the local level. Additionally, we hope the public will recognize that this Report contains the kind of information that all election administrative agencies need to better achieve the public charge for producing accurate election results and to facilitate sound improvements in election administrative practices

Collaborative Public Audit of the November 2006 General Election

We hope that this Audit Report will assist the Ohio Secretary of State, all Ohio local Boards of Election, election reform organizations, and other election officials nationwide in seeing how an independent audit process can be created and function at the local level. Additionally, we hope the public will recognize that this Report contains the kind of information that all election administrative agencies need to better achieve the public charge for producing accurate election results and to facilitate sound improvements in election administrative practices