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89 Chi.-Kent L. Rev. 503 (2014)
Protecting from Endless Harm: A Roadmap for Coercion Challenges after N.F.I.B. v. Sebelius

handle is hein.journals/chknt89 and id is 517 raw text is: PROTECTING FROM ENDLESS HARM: A ROADMAP FOR
National Federation of Independent Business v. Sebelius I (NFIB) was
one of the most anticipated Supreme Court decisions of all time, with most
attention focused on whether the Patient Protection and Affordable Care
Act's (PPACA) individual mandate to buy healthcare coverage was
constitutional. The individual mandate promised to be a re-examination of
the Court's precedent on Congress' commerce clause power, federalism,
and individual sovereignty. It came as a shock, therefore, when a plurality
of the Supreme Court instead declared the act's Medicaid expansion un-
constitutional for being coercive.2 Two separate opinions-one written
by Chief Justice Roberts and joined by Justices Breyer and Kagan, the oth-
er a Joint Dissent joined by Justices Scalia, Kennedy, Thomas, and
Alito-declared that Congress had coerced the States by threatening to
withhold all or part of a State's existing Medicaid funding if that State
failed to implement the Medicaid expansion.3 Though the coercion argu-
ment has existed for decades,4 NFIB marks the first time the Court has
declared a congressional spending power program coercive.5
Both Chief Justice Roberts and the Joint Dissent refused to explicitly
state when the Medicaid expansion became coercive.6 Chief Justice Rob-
erts did not elaborate on where the line between persuasion and coercion
is crossed, simply stating that the Medicaid expansion crossed that line.7
As a result of this vague language, a number of academic articles have been
*Chicago-Kent College of Law, Class of 2014. A tremendous amount of thanks is owed to Professor
Carolyn Shapiro, whose guidance and support made this note possible, and to my parents Joe and
Roxanne, for all their support throughout law school.
1. Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. U.S. 2566 (2012).
2. Id. at 2604.
3. See id. at 2606-07.
4. See Chas. C. Steward Mach. Co. v. Davis, 301 U.S. 548 (1937).
5. Nicole Huberfeld, Elizabeth Weeks Leonard, & Kevin Outterson, Plunging Into Endless
Difficulties: Medicaid and Coercion in National Federation of Independent Business v. Sebelius, 93
B.U. L. REv. 1, 3 (2013).
6. See NFIB, 132 S. U.S. at 2607; id. at 2662 (joint dissent).
7. Id. at 2606-07 (Roberts, C.J., majority for Medicaid Expansion).


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