Crossing the Constitutional Line in Spending From Persuasion to Compulsion: A Reply to Gillian Metzger

In her remarks at the 2011 Annual Meeting of the Association of American Law Schools (AALS), Professor Gillian Metzger of Columbia University Law School offered an interesting critique of the Spending Clause claim now being pursued by a majority of the states in the United States in the constitutional challenge to health care reform. The states claim that the changes to Medicaid are beyond the power of Congress to effect constitutionally under the Spending Clause of the United States Constitution because the changes are coercive and also violate the general restrictions identified by the Supreme Court of the United States in South Dakota v. Dole. Professor Metzger\u27s overriding point that the Spending Clause claim will be a very hard sell has subsequently been borne out by Judge Roger Vinson. Though holding the individual mandate to be unconstitutional, Judge Vinson also ruled against the states\u27 Spending Clause claim in Florida ex rel. Bondi v. U.S. Department of Health & Human Services on January 31, 2011. When Professor Metzger made her remarks on January 7, 2011, days before Judge Vinson\u27s decision (the first decision on the merits of that claim by any court hearing a challenge to health care reform), she correctly predicted the general outcome of the first judicial review of the states\u27 Spending Clause claim. Professor Metzger argued that the coercion claim is undermined factually to the extent the costs of Medicaid\u27s changes will be disproportionately shouldered by the federal government, not the states. Professor Metzger also suggested that the final design of health care reform reflected compromises that in some ways acceded to state interests and federalism, even if the states were not at the table. As to the latter point, however, she did not articulate specifically how health care reform acceded to state interests-perhaps because, with twenty-six states suing in this action alone, that is a tough case to make

Introduction to a Panel on the Modernization of Financial Regulation: What Is the Governmental Role in Finance, Anyway?

On January 8, 1998, at the annual meeting of the Association of American Law Schools, a program sponsored by the Section on Financial Institutions and Consumer Financial Services was held, What Is the Governmental Role in Finance, Anyway? Three distinguished panelists made presentations outlining core concerns that the panelists argued should guide future governmental regulation of banking and finance. The following papers are based on the panelists\u27 presentations at the conference and offer insights into the thinking of some of the most prominent figures in financial regulation today. The papers are evidence of the rich mix in financial regulation of the theoretical and the practical, the historical and the futuristic, the political and the economic, the bureaucratic and the entrepreneurial--an eclectic array of forces that all line up to be counted in the legal calculus. The papers also implicitly acknowledge the general social importance of finance, as well as the sheer difficulty of any attempts to adjust the systematic character of financial regulation