Governmental Coercion Works – Very Effectively

March 21st, 2012

By Dan Miller

A frog was placed in a pot of pleasantly warm water. He thought it was great. Then, the temperature increased but remained pleasant.  Eventually, it became quite hot, to the point that he could no longer jump out. He eventually emerged, delicious and well done.

In this article, I expressed disappointment with Colonel West’s support of the The Safe Teen and Novice Driver Uniform Protection Act because passage would be another in a long chain of facially and initially pleasing but ultimately dangerous clumps of federal legislation. Colonel West opposes ObamaCare as well he should. So do I and many others; it is a great failure.  Perhaps, however, Colonel West and many others fail to see as clearly as they might a larger picture.

Briefly, the legislation Colonel West now supports would impose some known and an as yet unknown number of also unknown requirements on state licensing of young drivers.  The requirements outlined in the bill appear generally good, but that may not be the case with additional requirements later to be imposed; that will be pretty much up to a Secretary of Transportation years from now.

On a grander scale, that has been true of ObamaCare, as Texas recently discovered to her discontent.

Texas Republican Gov. Rick Perry on Thursday directed state officials to begin looking for money to keep the Medicaid Women’s Health Program, even if the Obama administration revokes federal funding amid a fight over clinics affiliated with abortion providers.

“We’ll find the money. The state is committed to this program,” Perry told reporters, shortly before he issued a letter directing Thomas Suehs, head of the Texas Health and Human Services Commission, to work with legislative leaders and identify money to keep the program going if federal funds are halted.

But pulling that off will be no mean feat: The program costs about $40 million and the federal government currently covers 90 percent of that.

As with ObamaCare, it will evidently be necessary to pass the teen driving bill to learn what it will eventually mean and do.  Shades of former but hardly silent Speaker Pelosi!  In the linked article, I analogized the situation to a frog in warm water:


Isn’t this Grand?

Put a frog in comfortably warm water and then gradually raise the temperature.  By the time the water gets too hot for him to jump out it’s too late and he emerges well done.

This article at Huff ‘n Puff provides some useful commentary on the situation by highlighting the issues soon to be before the Supreme Court on the Medicaid provisions of ObamaCare.  It notes that

Progressives should be particularly attuned to the attacks on Medicaid and Congress’ Spending Clause power. Unlike the minimum coverage provision — a concept designed by the conservative Heritage Foundation that has generated considerable unease among some progressives — Medicaid is a quintessential social safety net program. Its expansion is perhaps the single most significant progressive victory in the ACA. Thus, for progressives — including more than 500 state legislators from all 50 states who are defending the Medicaid expansion — the Supreme Court’s decision to review the claim by 26 states that the ACA unconstitutionally coerced states by conditioning Medicaid funds on the states’ agreement to expand coverage to more of their residents was a particularly unsettling surprise. In contrast to the claims against the ACA’s minimum coverage provision, there was no split in lower court rulings on the constitutionality of the Medicaid expansion: not a single lower court judge ruled for the states on this claim. Indeed, no court has ever ruled that any Spending Clause statute is unduly coercive, a recognition that it is difficult, if not impossible, to differentiate between an appropriate financial inducement and unconstitutional coercion. (Emphasis added)

Our courts are generally disinclined to get into such matters, with good reason — they are quite reluctant to substitute their judgments for those of the Congress; it’s largely matter of the separation of powers.  I don’t know whether the Medicaid provision is unconstitutional, and could make reasonable arguments both ways — that’s what we lawyers are trained to do. However, here is the part of the Huff ‘n Puff article that really bothers me:

Paul Clement, the high-profile conservative lawyer representing the Medicaid challengers, argues that the ACA’s expansion of Medicaid is a bridge too far. Because the federal government could withhold all Medicaid payments to states that fail to comply with the Act’s expanded coverage and other requirements — which is no small thing, given that the federal government will fund 100% of the Medicaid expansion initially, eventually tapering down to 90% — Clement argues “[t]here is no plausible argument that a State could afford to turn down such a massive federal inducement.” Essentially, the argument is that the federal government’s Medicaid spending is too generous, that the states and their residents have become too dependent on this valuable program, and that it is therefore an offer the states cannot afford to refuse. This argument should be a loser. While the Supreme Court has suggested that there might be a “point at which pressure turns into compulsion,” it has never found any conditioned spending to be inappropriate coercion or compulsion. In addition, the Court has recognized that “every rebate from a tax when conditioned upon conduct is in some measure a temptation” and “to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties.” (Emphasis added)

The author may well be correct and, for that reason if for none other, the points that he makes should urge caution by those who oppose an already bloated, expensive and expanding Nanny State — as well as by those seek its dubious benefits but ignore its real future costs:

Clement is asking the Court to take the plunge, which is what makes this aspect of the ACA case so scary. Clement argues that a ruling for the challenger states on this point would invalidate “the entire Affordable Care Act,” an enormously significant outcome, even if this were the only fallout. But that limited result seems unlikely. To some degree or another, the objective of Congress in employing the Spending Clause is always to make an offer to states that is so generous — or politically popular — that they cannot afford to turn it down: the federal government always wants to convince states to participate. As a result, a ruling for Clement and his clients would throw into doubt prior expansions of Medicaid and federal/state partnerships across a wide range of areas including education (No Child Left Behind), child welfare (Adoption and Safe Families Act), disabilities (Individuals with Disabilities in Education Act), and civil rights (Title VI of the Civil Rights Act of 1965 and Title IX of the Education Amendments of 1972), a prospect that has some conservatives cheering. (Emphasis and bold face added)

Volokh Conspiracy put it all rather well:

The states get money from the federal government, with strings attached. Congress is happy, because it gets to spend more money, and state and local officials are happy because they can claim credit for spending the money without being accountable for raising it.  But local citizens who are unhappy with the relevant “strings” have no recourse to their local government, because the locals are just following orders from the feds. It’s the worst of all worlds and a great example of a very dysfunctional version of federalism–Congressional overspending, centralized rules from agencies in Washington, D.C., and no accountability at the level where the money is spent and the rules implemented.

As a rather obsequious attorney is said to have responded to a judge who restated the points he had previously tried to make, “thank you, Your Honor, for making the point I have been trying to make and for making it far more persuasively than I was able to make it.”


This crown is too small for my expanding head!

We have had more than enough of this sort of thing. We have drunk the King’s wine and eaten the King’s bread and thus we belong, body and soul, to the King. Escaping such bondage is difficult and painful.  Preventing it, by refusing to drink the King’s wine and by refusing to eat the King’s bread in the first place, is more manageable.

The King insists on a fattening diet to be eaten with more than a merely unhealthy grain of salt. We should tell our CongressCritters to decline further encroachments at the beginning — before rather than after they become unresistable.

(This article was also posted at Dan Miller’s Blog.)

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One Response to “Governmental Coercion Works – Very Effectively”

  1. abpavelski |

    very often the public’s ignorance of the law and how it’s courts work hurts us.

    The Statutory U.S. Supreme Court and the Supreme Courts of the United States are different courts and determine totally different issues.

    In my opnion, the question is which venue or jurisdiction is the Obama Care case being heard is it the U.S. Supreme Court or the Supreme Court of the United States, they are different courts.

    I believe one court translates the statutory law as written and interprets the statute for use and if it can actually be applied; the other would determine the (un)constitutionally of the Obama Care law.

    I suspect it is in the wrong court ,(U.S. Supreme Court), so it will not be overturned.

    The attorney filing the case determines which court hears the case and then Court decides if they will hear it.

    Please correct me if i’m wrong.

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