Tribe on “Fair Weather Federalism” and King v. Burwell

March 17th, 2015

In his testimony opposing new EPA regulations, Professor Laurence Tribe weighs in (indirectly) on King v. Burwell. He analogizes the coercive nature of the EPA rules with the concerns Justice Kennedy raised during oral arguments. Starting on page 3:

Alternatively, if a State plan does not meet with EPA’s approval, EPA claims the power to impose severe sanctions, including the loss of highway and Clean Air Act funds, as well as the imposition of a centrally planned and administered federal scheme that could harm not simply the State but also its citizens and economy. As noted by Jody Freeman, the former senior counselor for energy policy in the White House, the prospect of a federal plan “would put states at a huge disadvantage if they choose not to file a plan,” because “EPA may not have the best plan for each state.”8  That admission essentially concedes that EPA’s proposal puts a gun to every State’s head.

In this respect, the federalism principles at issue here are strikingly similar to those that arose in the Affordable Care Act case of King v. Burwell, argued in the Supreme Court on March 4. There, Justice Kennedy, among others, noted the “serious constitutional problem” that would result if a federal statute were interpreted as threatening the citizens of a State with significant injury unless the State agreed to follow federal policies.9

Tribe compares the EPA proposal to the ACA, noting the coercive effects of both, and lack of clear notice.

This case involves the same pressures on States to knuckle under to the Federal Government, and the same lack of clear notice.

If Tribe thinks the EPA regulations are coercive, under this reading of NFIB, so too would be the subsidies regime.

The Supreme Court has explained that the “legitimacy of Congress’s exercise of the spending power” “rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’”10 “Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system.”11

EPA’s plan spectacularly fails that test, and the rule of law commands us to be consistent.

In a not-too-veiled jab at some ACA supporters, Tribe faults “fair weather” federalists who only look to federalism to uphold policies they like.

Some people seem to practice “fair weather” federalism, rediscovering States’ rights when it allows them to sustain a federal policy they favor, but abandoning the same principles when it suits them. The Constitution demands more than that.

Unlike many who support the challenge in King v. Burwell, I’ve thought for some time that the subsidies regime is quite coercive, and as I’ve argued, a decision invalidating the IRS rule sets the stage for a subsequent legal challenge to the entire regime. Tribe argues persuasively that the coercion doctrine is alive and well, and may snare Obamacare yet again.

By the way, Tribe’s prose is beautiful. I love the environmental-imagery he creates with sentences like these:

The obscure section of the Clean Air Act that EPA invokes to support its breathtaking exercise of power in fact authorizes only regulating individual plants and, far from giving EPA the green light it claims, actually forbids what it seeks to do.

Burning the Constitution should not become part of our national energy policy.

H/T The eagle-eyed Adam White, who misses nothing.