Document Type


Publication Date


Publication Title

Hastings Constitutional Law Quarterly


Tenth Amendment, health care reform, constitutional law


This Article proceeds in four Parts. The first briefly summarizes the approach of each of the pending health reform bills and distills those portions relevant to current Tenth Amendment and Spending Clause analysis. Provisions that would impose on States the financial and administrative responsibility for achieving Federal regulatory objectives or that specify punitive measures to be taken against States choosing not to participate in the cooperative program are critical features for the inquiry. Employing these criteria, the first Part identifies seven distinct and largely novel models of problematic regulatory instructions that warrant more probative analysis.The second Part briefly outlines the Court's erratic path to New York and evaluates its approach for assessing whether Federal law unconstitutionally usurps State power in the service of national regulatory goals. National health reform raises again the substantive policy issue that has generated grave concern from constitutional scholars, who have divided into separate camps over the justiciability of the Tenth Amendment. In its latest decision, the Court has taken the route the dissenters in Garcia v. San Antonio Metropolitan Transit Authority predicted and found the Amendment justiciable in some respects, an outcome endorsed here. Although taking care not to overrule Garcia, the New York opinion identified one boundary beyond which the Congress may not tread though exercising otherwise legitimate commerce power. Moreover, the New York Court implicitly rejected the proposition that if Congress can legitimately preempt States from the regulatory field, any means it chooses to induce States to participate in the Federal-State cooperative venture is permissible. Thus, the greater power does not ipso facto incorporate the lesser. Finally, this Part hazards some thoughts in response to Professor Erwin Chemerinsky's view that the new federalism jurisprudence does not serve any of the traditional values of federalism, offering a justification for New York's conclusion while criticizing its reasoning.Part III turns to evaluate the seven problematic models of Federal regulatory instructions in light of New York and related precedent. This Article argues that some of these models fail under the Court's current approach to the Tenth Amendment and others are open to serious question. Some modifications to pending bills may be warranted to ensure their constitutionality under the Tenth Amendment. Those models implicating primarily the spending power, rather than the Tenth Amendment, are substantially better insulated from constitutional attack. Some uses of this power, however, raise questions about the continuing adequacy of the Court's deferential standard of review given their impact on republican citizenship and representative government.