Title: Clearing the Air Following National Federation of Independent Business V. Sebelius: The Clean Air Act and the Constitutionality of Highway Sanctions
Abstract: Last year, in the highly anticipated healthcare decision in National Federation of Independent Business v. Sebelius (NFIB), the Supreme Court ruled that the federal government cannot threaten to take away Medicaid funding from a state that refuses to participate in the expansion of Medicaid mandated by the Patient Protection and Affordable Care Act. The Court's decision was momentous since it was the first time that it found a federal conditional spending program to be unconstitutionally coercive. The Court's holding will almost certainly lead to legal challenges of federal conditional spending programs, particularly the Clean Air Act (CAA). Under section 179 of that statute, the federal government may impose highway fund sanctions on any state that has a deficient or incomplete State Implementation Plan.Despite the concerns of prominent legal scholars regarding the constitutionality of section 179 following NFIB, this Note argues that the decision does not shake the statute's constitutional underpinnings. The CAA is distinguishable in several key respects. First, the availability of a Federal Implementation Plan under the CAA provides a viable alternative to the loss of highway funds. NFIB is a unique case, given that a state's loss of Medicaid funds would have affected vulnerable populations, and the beneficiaries of highway funds differ in their need and dependency. Furthermore, states can turn down highway funds more easily than Medicaid funds, since states receive fewer federal dollars for highways than for Medicaid, both as a total and as a percentage. This Note also argues that states had adequate notice of the conditions imposed for receipt of highway funding, and section 179 sanctions are sufficiently related to the goals of the CAA, given the ties between transportation and air pollution, for example. Indeed, invalidation of section 179 would undermine federalism by disturbing the delicate balance of power between the federal government and states with respect to clean air protection. Thus, section 179 should survive a facial or as-applied challenge.INTRODUCTIONOn June 28, 2012, the U.S. Supreme Court issued the most anticipated opinion of the new century, National Federation of Independent Business v. Sebelius (NFIB).1 In a divided opinion, the Court upheld the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act, more commonly known as the Affordable Care Act (ACA).2 One aspect of the ruling in the NFIB opinion, however, could have consequences for decades to come. The Court ruled that the federal government cannot take away all of a state's Medicaid funding if that state refuses to participate in the ACA's expansion of Medicaid.3 According to the Court, such conditional spending is impermissibly coercive in light of the federalism principles embedded in the Constitution.4 Because the Court had never before found a federal grant to be coercive,5 this holding will likely embolden states to challenge conditional federal grants under the Spending Clause.6One such challenge will likely involve the Clean Air Act (CAA),7 the comprehensive federal law focused on air pollution abatement and control. Under section 179 of the CAA,8 the U.S. Environmental Protection Agency (EPA) may impose highway fund sanctions on any state that has a deficient or incomplete State Implementation Plan (SIP).9 States have already turned to NFIB to argue that such measures are unconstitutional. For example, in Texas v. EPA,10 counsel for the State of Texas submitted a notice of supplemental authority to the U.S. Court of Appeals for the District of Columbia Circuit, contending that EPA's call to compel regulation of greenhouse gases (GHGs) is impermissibly coercive under the analysis set forth in NFIB.11 More legal challenges are likely to come, given strong antiregulatory sentiment throughout the United States.12Such litigation raises the question: Are the CAA's highway sanctions constitutional following NFIB? …
Publication Year: 2013
Publication Date: 2013-12-01
Language: en
Type: article
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