Randy Barnett argues in the Wall Street Journal that Obamacare goes to far in threatening to withhold money from the states. Given the space limitations of a newspaper op-ed page, it is perhaps understandable that the discussion does not quite persuasively distinguish the 7-2 South Dakota v. Dole decision. The Governor Tim Pawlenty amicus brief (filed by CEI's Hans Bader and Sam Kazman) in the McCollum litigation does a better job, arguing that South Dakota and Pennhurst State School and Hospital v. Halderman require more concrete terms than the PPACA provides, and thus courts are not given the "clear and informed choice" between participation and non-participation that the Supreme Court says it requires. I haven't seen any other discussion of Pennhurst in the context of health-care reform, so CEI's outlier position is either brilliant or crazy.
Obamacare litigation: the Pennhurst argument
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Center for Legal Policy at the