Until the 2011 Term, no Supreme Court decision since the New Deal had struck down an act of Congress as exceeding the federal spending power. The question of unconstitutionally coercive conditions was also novel. Indeed, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power until the Court decided National Federation of Independent Business v. Sebelius (NFIB) on June 28, 2012. This Article proceeds as follows: Part I discusses the Affordable Care Act's Medicaid expansion in the context of the history and purpose of the Medicaid Act, paying particular attention to facts about the Medicaid program the Court misunderstood. Part II summarizes the litigation from the lower courts up to the NFIB decision, and examines the Medicaid coercion opinions in NFIB in detail. Part III first considers NFIB in the context of the Federalism Revolution, and then discusses three weaknesses in the new coercion doctrine with an eye toward predicting difficulties of application.

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Notes/Citation Information

Boston University Law Review, Vol. 93, No. 1 (January 2013), pp. 1-88



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