NFIB Sebelius Dissent



ernment, neither the amount of the offered federal funds
nor the amount of the federal taxes extracted from the
taxpayers of a State to pay for the program in question is
relevant in determining whether there is impermissible
coercion. Id., at 41-–46.

  This argument ignores reality.  When a heavy federal
tax is levied to support a federal program that offers large
grants to the States, States may, as a practical matter, be
unable to refuse to participate in the federal program and
to substitute a state alternative.  Even if a State believes
that the federal program is ineffective and inefficient,
withdrawal would likely force the State to impose a huge
tax increase on its residents, and this new state tax would
come on top of the federal taxes already paid by residents
to support subsidies to participating States.13

Acceptance of the Federal Government’’s interpreta-
tion of the anticoercion rule would permit Congress to dic-
tate policy in areas traditionally governed primarily at the
state or local level.  Suppose, for example, that Congress
enacted legislation offering each State a grant equal to the
State’’s entire annual expenditures for primary and sec-
ondary education.  Suppose also that this funding came
with conditions governing such things as school curricu-
lum, the hiring and tenure of teachers, the drawing of
school districts, the length and hours of the school day, the
13 JUSTICE GINSBURG argues that “”[a] State . . . has no claim on the
money its residents pay in federal taxes.””  Ante, at 59, n. 26.  This is
true as a formal matter.  “”When the United States Government taxes
United States citizens, it taxes them ‘in their individual capacities’’ as
‘‘the people of America’-’—not as residents of a particular State.””  Ante, at
58, n. 26 (quoting   U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779,
839 (1995) (KENNEDY, J., concurring)).  But unless J USTICE GINSBURG
thinks that there is no limit to the amount of money that can be
squeezed out of taxpayers, heavy federal taxation diminishes the
practical ability of States to collect their own taxes.  


school calendar, a dress code for students, and rules for
student discipline. As a matter of law, a State could turn
down that offer, but if it did so, its residents would not
only be required to pay the federal taxes needed to support
this expensive new program, but they would also be forced
to pay an equivalent amount in state taxes.  And if the
State gave in to the federal law, the State and its subdivi-
sions would surrender their traditional authority in the
field of education.  Asked at oral argument whether such
a law would be allowed under the spending power, the
Solicitor General responded that it would.  Tr. of Oral Arg.
44–-45 (Mar. 28, 2012).


  Whether federal spending legislation crosses the line
from enticement to coercion is often difficult to determine,
and courts should not conclude that legislation is uncon-
stitutional on this ground unless the coercive nature of an
offer is unmistakably clear.  In this case, however, there
can be no doubt.  In structuring the ACA, Congress unam-
biguously signaled its belief that every State would have
no real choice but to go along with the Medicaid Expan-
sion. If the anticoercion rule does not apply in this case,
then there is no such rule.


  The dimensions of the Medicaid program lend strong
support to the petitioner States’’ argument that refusing to
accede to the conditions set out in the ACA is not a realis-
tic option. Before the ACA’’s enactment, Medicaid funded
medical care for pregnant women, families with depend-
ents, children, the blind, the elderly, and the disabled.  See
42 U. S. C. §1396a(a)(10) (2006 ed., Supp. IV).  The ACA
greatly expands the program’s reach, making new funds
available to States that agree to extend coverage to all
individuals who are under age 65 and have incomes below