Justice Ginsburg’s concurring opinion attacks the only part of the court’s ruling that had broad support (seven justices, excluding only Ginsburg and Sotomayor). This is the finding that the expansion of Medicaid provides an unconstitutional penalty insofar as the Federal government withholds funding for existing Medicaid programs as a punishment for a state’s refusal to adopt the expansion of Medicaid to those who are not poor.

Ginsburg points out that “prior to today’s decision . . . the Court has never ruled that the terms of any grant crossed the indistinct line between temptation and coercion.” Previous decisions had recognized, in theory, that Congress might pass a law providing grants whose terms would make it impossible for the states to refuse, but the Court always found a reason to accept the law being challenged.

The Washington Post predicts that this portion of the Roberts decision will produce “challenges to federal conditions across a wide spectrum of programs, including but not limited to the environment, education, and transportation.” There can be little doubt that many attorneys general will consider the possibility of removing onerous conditions to Federal funding by challenging them in court under this precedent.

Perhaps these challenges will amount to little, with the Supreme Court refusing to rule that Federal mandates go too far. Nevertheless, this could make it difficult for Congress to impose its will on the states through grants, and might even make such grant programs less attractive to members of Congress.


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