Fed Med to Fed Ed: Beware of the “Unconstitutionally Coercive” Standard

A few months ago I wrote about U.S. Supreme Court Justice Samuel A. Alito’s take on the Obama administration’s arguments for the Medicaid expansion—a provision of the President’s Patient Protection and Affordable Care Act (Obamacare). Justice Alito offered U.S. Solicitor General Donald B. Verrilli Jr., the hypothetical example of a “federal education tax,” saying:

“Now, this is a great offer, and we think you will take it,” Justice Alito said. “But of course, if you take it, it’s going to have some conditions because we are going to set rules on teacher tenure, on collective bargaining, on curriculum, on textbooks, class size, school calendar, and many other things. So take it or leave it.” The states could say no, but they would have to pay the federal education tax, plus come up with their own money to replace the federal dollars they declined, the justice added. “Would that be the point where financial inducement turns into coercion?”

However novel federal coercion may seem when it comes to health care, it’s nothing new in education. From the earliest days of our Republic to contemporary opposition over No Child Left Behind, there has been bi-partisan concern about the federal role in education—particularly since Congress has only the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Consider the following sampling of opposition:

When the question of federal involvement in education arose during the Constitutional Convention of 1787, Gouverneur Morris of Pennsylvania dismissed the idea out of hand saying only that it “is not necessary.” (p. 1293)

The higher education community—along with Bill Gates, one of the country’s most prominent college drop-outs—is preparing to celebrate 150 years of  An Act Donating Public Lands to the Several States and Territories which may provide Colleges for the Benefit of Agriculture and the Mechanic Arts, more commonly known as the Morrill Act. However, in the years prior to its enactment there was strong criticism of the idea.

Sen. James M. Mason of Virginia opposed federal land grants to the states back in 1859 because it perverts federalism by “substituting the wisdom of Congress and the discretion of Congress in the management of domestic affairs of the States…All this to be done—for what? That the States may be bribed by Federal power to conform their domestic policy to Federal will.” (p. 719)

Sen. Barry Goldwater of Arizona opposed the National Defense Education Act of 1958, explaining that “the federal government has no funds except those it extracts from the taxpayers who reside in the various States. The money that the federal government pays to State X for education has been taken from the citizens of State X in federal taxes and comes back to them, minus the Washington brokerage fee.”

Recent magazine story headlines reflecting this sentiment include “Presidential Candidates and the School Yard Bribe” in National Review and “Gourmet Bribes for Test Score Improvement” in Mother Jones.

Two months ago I wrote, “If the U.S. Supreme Court does consider coercion more closely, then Fed Ed—along with newcomer Fed Med—may have to revise more than two centuries of strong-arming states in the name of ‘federalism’.” This morning the Wall Street Journal noted for all the alarming precedents of Chief Justice Robert’s ObamaCare ruling, “Still, this is the first time the Court has found a law enacted under Congress’ spending power to be unconstitutionally coercive.”

If the “unconstitutionally coercive” standard does take hold, then states and individuals have a powerful new weapon in their legal arsenal to fight back against ongoing federal power grabs, including the push for Common Core National Standards, which is expressly prohibited (See “Federal Control of Education Prohibited,” Sec. 604, p. 90).