The Shelter of Federalism

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

President Obama seems to be hanging back from an outright threat to cut off federal funding for states that fail to bow to the government edict in respect of transgender pupils and school bathrooms. His administration comes close to such a threat — “blackmail,” is the word used by Lieutenant Governor Daniel Patrick of Texas. But it doesn’t formally state that it is going to withhold funds. We’re just making a guess here, but maybe the administration remembers what happened when Obamacare got to the Supreme Court.

One of the things the court did in that case is block the federal attempt to force the states to heel on Medicaid. The Affordable Care Act attempted to do that for states that wouldn’t expand Medicaid; it would have punished them by withholding other Medicaid funding. The Nine balked. “When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism,” the court said.

The decision of the court — the case is known as National Federation v. Sebelius — is more famous for allowing the individual mandate to go forward under the taxing power. The threat to withhold Medicaid funding, by contrast, was cashiered not just by the right-wingers on the court but also by two of the court’s liberal luminaries, Justices Kagan and Breyer. They joined the Chief Justice and the conservatives in an opinion that used astonishingly blunt language to bring the Obama administration up short.


Chief Justice Roberts went so far as to use the phrase “economic dragooning” that leaves the States with no real option but to acquiesce in the Medicaid expansion. What we particularly like about the decision is the pride of place it gave to the very concept of federalism. The court quoted its own language in an earlier case, in which it ruled that“[t]hough Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post-acceptance or ‘retroactive’ conditions.”

It’s not our purpose here to opine one way or another on the question of what bathrooms transgender pupils are entitled to use (we don’t mind saying that we can see serious arguments on both sides of the question). And it’s always going to be dangerous to cite National Federation v. Sebelius as precedent, given that it’s such a dog’s breakfast of illogic, internal contradiction, and politics disguised as jurisprudence. All the more remarkable, though, is the combination of justices who put the brakes on Secretary Sebelius.

The sages are in agreement that once the federal government enacts funding for a program, it can’t start attaching conditions to the money willy-nilly and retroactively. Nor, when one thinks about it, is it difficult to comprehend the point. Allowing the government to do that would mean that were a state to take so much as a farthing of federal money, it would put at risk the very sovereignty that is the basis of the Great Compromise of the summer of 1787. It’s another example of how the federalist principle is a shelter of local liberty in our vast country.

The New York Sun

© 2023 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  Create a free account

By continuing you agree to our Privacy Policy and Terms of Use