Obamacare and the Spending Power

        The most surprising development in today's grants of certiorari in the Health Care litigation is the Court's decision to grant certiorari in Florida v. Department of HHS.  The question squarely presented in that grant is whether the Medicaid expansion that is part of the optimistically named "Affordable Care Act" is void because it is coercive, under the framework established by South Dakota v. Dole, 483 U.S. 203 (1987), or whether that framework should be revised.  Serious evaluation of the scope of the conditional spending power is long overdue, for it remains the easiest possible device for the federal government to force states to comply with federal mandates by dangling federal cash in front of financially strapped states.  The Court in Dole never provided any meaningful guidance concerning the meaning of coercion in this context.  Justice O'Connor argued in Dole that the conditional spending power should be limited to attaching conditions to how the federal money should be spent, but not to extend to conditions that are ancillary to the spending itself.  The reason, of course, is that Congress may have a very broad power to spend -- one that is not limited to the specific enumerated heads of legislative power -- but once it seeks to regulate by attaching conditions that go beyond how the funds are to be spent it has undertaken to regulate, and that power is limited to that which is necessary and proper to accomplish an enumerated head of legislative power.  In the long run, the Court's resolution of this issue may be far more significant than the validity of the individual mandate in the ACA.  We shall see.