Commandeering Information (And Informing the Commandeered)

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The anti‐commandeering rule just hit its high point. Fifteen years after the Supreme Court last held a law unconstitutional under the rule, the Court held in National Federation of Independent Business v. Sebelius that the Affordable Care Act’s Medicaid expansion, which conditions the continuation of Medicaid funding on a broad extension of program benefits, unconstitutionally commandeers state governments for federal purposes. Most importantly, perhaps, the Court’s opinion assigned the question of whether to accept the Medicaid expansion to the states, where the federalism principles contested in Sebelius are now entering (or, given the state origins of the litigation, reentering) debates in statehouses across the country. And public health insurance is just one topic in a broader debate over the relationship between state and federal policies on guns, immigration, marijuana, marriage, physician‐assisted suicide, and other political issues yet to emerge. In this Response, I will amplify and extend one of Professor Mikos’s points, which identifies the commandeering problem, and I will suggest some limits to his proposal of a judicially managed solution. Commandeering information should be recognized, like other forms of federal coercion of state officials, as imposing significant costs on states. Yet the costs to state autonomy from commandeering information, and the prospects that federal judges might mitigate them, are (as they are for commandeering generally) relatively limited. Further, the costs to political accountability from commandeering information are difficult to assess, but these may be more effectively mitigated through political means. Even if Professor Mikos’s conception of commandeering information is not enforced by the Judiciary, it at least helps the states (and their citizens) recognize that they have been commandeered.

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