Last week’s Supreme Court decision on health care (pdf) sparked a lot of speculation about what it means for other federal programs like education aid. Some think – either with glee or concern – that federal categorical aid will be in the dock soon. The issue turns on the part of the ruling upholding the law overall that did strike down the required expansion of the Medicaid program because a state’s refusal to do so would put all of its Medicaid funding at risk. The court decided this was too coercive.
The education parallels are interesting (and did come up during oral arguments and in the opinion) but not cut and dry. The basic question is: At what point are federal conditions attached to aid unreasonably coercive? Justices Scalia, Alito, Kennedy, and Thomas said in their dissent that the line between enticement and coercion is tricky to discern and that courts should act only when it is unmistakably clear – which they argued it was is the health care case.
Yet even that standard coupled with the context doesn’t seem to put most education programs in any jeopardy. There is some precedent here. First, there is a lot of case law about conditional federal aid. More recently, led by the National Education Association there were suits against No Child Left Behind and its requirements – they lost. In the early days of the law now called the Individuals with Disabilities Act several states refused that funding. And states have episodically rejected dollars with conditions they didn’t like – Virginia, for instance, turned down Goals 2000 money for a while before acquiescing. So there is a choice.
That’s in large part because federal education dollars represent a smaller part of a state’s overall budget (and even its education budgets) than Medicaid dollars do. So the coercion on a state is less (and in his question during oral arguments Justice Alito used an extreme example not one based on how current policy works). The question is more interesting around issues such as the No Child Left Behind waivers. They were based on existing policy but policy that the Obama Administration developed based on a very loose congressional authorization. They were also developed after the underlying program had been enacted by Congress and somewhat independent of it. On the other hand, there was no funding at risk, only regulatory flexibility unless a state decided to opt-out altogether rather than maintain the status quo or get a waiver. This sort of regulatory policymaking is increasingly common. It’s not coincidence that the rise of the administrative state parallels an increasing tendency by Congress to write laws with loose language that demand interpretation and often policymaking and then involve the courts. An entire industry has sprung up around IDEA case law.
Overall I agree with those who see the health care ruling as a mixed one and see it as as a ‘winning the battle but losing the war’ moment for those who favor a strong federal role in some areas of social policy. Of course, expanding access to health care is a hell of a big battle to win and has a direct positive impact on millions of American lives. In the long run these questions of federalism seem likely to become even more contested ground in the courts. Still, in education conditional aid seems safe under most circumstances – Justice Roberts has said that if you pay the piper you can call the tune and in this case it’s the somewhat unique nature of Medicaid finance and the requirements in the ACA that are at issue. But ideas on the fringes – for instance the NCLB waivers – could get a serious look by the courts.