Timothy Sandefur (Author at The Cato Institute)

Florida v. U.S. Dep't of Health & Human Services (Legal Briefs)

Tue, 17 Jan 2012 00:00:00 EST

Cato's second Supreme Court amicus brief in the Obamacare litigation concerns the issue of whether the health care law's Medicaid expansion is a proper exercise of the Constitution's Spending Clause. That is, states must now accept a comprehensive reorganization of Medicaid or forfeit all federal Medicaid funding—even though the spending power is circumscribed to preserve a distinction between what is local and what is national. If Congress is allowed to attach conditions to spending that the states cannot refuse in order to achieve an objective it could not outright mandate, the local/national distinction that is so central to federalism will be erased. Joining the Center for Constitutional Jurisprudence, Pacific Legal Foundation, Rep. Denny Rehberg (chairman of the House Appropriations Subcommittee on Labor, Health & Human Services, Education, and Related Agencies), and Kansas Lt. Gov. Jeffrey Colyer (also a practicing physician), we argue that, in requiring states to accept onerous conditions on federal funds that it could not impose directly, the government has exceeded its enumerated powers and violated basic principles of federalism. California is at risk of losing $25.6 billion in annual federal funding, for example, and together the states stand to lose more than a quarter trillion dollars annually. On average, states would have to increase their general revenue budgets by almost 40% in order to maintain their current level of Medicaid funding. The 1987 case of South Dakota v. Dole, however, prohibits such a coercive use of the spending power and recognizes that "in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'" Indeed, the states' obligations, should they "choose" to accept federal funding and thus commit themselves to doing the government's bidding, are far more substantial than those the Supreme Court invalidated in New York v. United States and Printz v. United States (which prohibit federal "commandeering" of state officials). Moreover, the Congress that enacted the original Social Security Act, to which Medicare and Medicaid were added in the 1960s, recognized that social safety has always been the prerogative of the states and should continue to be done under state discretion. Medicaid itself was narrowly tailored to serve particularly needy groups. In short, if Obamacare does not cross the line from valid "inducement" to unconstitutional "coercion," nothing ever will. Just as the Commerce Clause is not an open-ended grant of power, the Spending Clause too has limits that must be enforced.

Book Review: Dangerous Precedents (Commentary)

Tue, 06 Dec 2011 00:00:00 EST

The Rights of the People: How Our Search for Safety Invades Our Liberties By: David K. Shipler Times Books, $27.95, 400 pages For 40 years our nation has been engaged in a civil war: a war waged in our streets and neighborhoods, schools and workplaces; a war that every day inflicts civilian casua...

Locke v. Shore (Legal Briefs)

Thu, 20 Oct 2011 00:00:00 EDT

The latest example of liberty-reducing occupational licensing schemes comes to us from Florida, where a law restricts the practice of interior design to people the state has licensed. Those wishing to pursue this occupation must first undergo an onerous process ostensibly in the name of "public safety." In reality, the law serves as an anti-competition measure that protects Florida's current cohort of interior designers. Our friends at the Institute for Justice have pursued a lawsuit against the law but lost their appeal in the Eleventh Circuit. Cato has now joined the Pacific Legal Foundation on a brief asking the Supreme Court to review that ruling. The lower court got it wrong not just with respect to the right to earn a living, however, but also on First Amendment grounds. That is, interior design, as a form of artistic expression, is historically protected by the First Amendment. Indeed, interior designers are measured primarily on the value of their aesthetic expression, not for any technical knowledge or expertise. This type of artistry is a matter of taste, and the designer and client usually arrive at the end result through collaboration and according to personal preferences. Thus, the designer-client relationship has little in common with traditionally regulated professions such as medicine, law and finance, where bad advice can have real and far-reaching consequences — but even then, the Supreme Court has emphasized the First Amendment implications of placing "prior restraints" on expression through burdensome licensing schemes. Instead of following that precedent, however, the circuit court carved out a constitutionally unprotected exception for "direct personalized speech with clients." Florida's "public safety" justification is similarly weak, given that the state has presented no evidence of any bona fide concerns that substantiate a burdensome licensing scheme that includes six years of higher education and a painstaking exam — instead relying on cursory allegations that, for example, licensed designers are more adept at ensuring that fixture placements do not violate building codes. Finally, the Eleventh Circuit's ruling disregarded the infinite array of auxiliary occupations the Florida law subjects to possible criminal sanctions: wedding planners, branding consultants, sellers of retail display racks, retail business consultants, corporate art consultants, and even theater-set designers could all get swept in. The state has already taken enforcement actions against a wide spectrum of people who are not interior designers, including office furniture dealers, restaurant equipment suppliers, flooring companies, wall covering companies, fabric vendors, builders, real estate developers, remodelers, accessories retailers, antique dealers, drafting services, lighting companies, kitchen designers, workrooms, carpet companies, art dealers, stagers, yacht designers, and even a florist. This dragnet effect also suggests that the law is too broad to survive constitutional scrutiny.