Document Type


Publication Date



The Supreme Court’s decision in the Health Care Cases to sustain the central provisions of the Affordable Care Act (or ACA) was hugely important in several ways. Most commentators have focused on the Court’s upholding of the ACA’s minimum coverage provision. But the Court’s Medicaid holding—that the ACA coerced (and thus commandeered) the states by making their preexisting Medicaid funds contingent on the states’ expanding their programs—may actually be more significant as a matter of constitutional law.

The basic thesis of this article is that, in finding the ACA’s Medicaid expansion provisions coercive, the Court has re-conceptualized what constitutes a federal “command” to the states, and thus re-defined the scope of the anti-commandeering principle. The Court’s holding means that federal laws can constitute commands even when they do not legally compel the states to act. The relevant inquiry is now practical rather than formal: has Congress left the states with a “real option” of saying no to the federal government’s conditions? This is an important shift. Not only does it potentially jeopardize a range of federal spending programs, but it also affects laws operating on the states as “conditional prohibitions”—federal statutes conditionally preempting state law. Until now, such statutes have been considered fully consistent with the anti-commandeering doctrine because they do not formally require the states to act. But the Health Care Cases upend this understanding. If, as a practical matter, the states have no “genuine choice” but to govern on a particular subject, Congress’s conditions specifying how that subject must be governed (to avoid federal preemption) may well amount unconstitutional commandeerings.

This new understanding could be particularly troubling in the field of state and local taxation. The number, complexity, and heterogeneity of state and local tax systems almost certainly impose a number of unnecessary costs on the American economy. And as the Court itself has long recognized, Congress is much better suited institutionally than the judiciary to address these problems. An anti-commandeering doctrine that disempowers Congress from enacting laws that meaningfully regulate state taxation would be unfortunate.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.