Blue States Should Get a Refund Under Roberts' "Equal Sovereignty" Doctrine
Among the many disturbing arguments in John Roberts' Voting Rights Act (VRA) decision, the most pernicious may be his invention of the "equal sovereignty" doctrine. In his Shelby County majority opinion, the Chief Justice struck down the VRA's Section 4 formula for determining which jurisdictions must be subject to "preclearance" in part because the VRA "dramatically departs" from the "fundamental principle of equal sovereignty" of the states.
But if Justice Roberts is right that Congress cannot treat different states differently, then the residents of Blue State America should be asking for a lot of money back from the federal government. After all, under the decades-old dynamic of "red state socialism," a one-way flow of federal tax dollars from taxpayers in blue states to subsidize government programs and services in red ones. And at the top of that long list is Medicaid, the very program Republicans want completely handed over to the states in the form of block grants from Washington.
Of course, Roberts isn't right that "equal sovereignty" prohibits subjecting some states (or parts of some states) to Justice Department preclearance for their proposed voting changes. It's with good reason that Richard Posner and Bush judicial appointee Michael McConnell said "there is no such principle" and it was "made up," respectively. As Justice Ruth Bader-Ginsburg explained in her dissent, Roberts relied in Shelby on the "equal sovereignty" invention he himself introduced in his 2009 Northwest Austin ruling, one which ignored Supreme Court precedent regarding the equal treatment of states:
In Katzenbach, however, the Court held, in no uncertain terms, that the principle "applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared."
And as she documented in laundry list fashion, Congress has repeatedly chosen different remedies for different local evils. "Federal statutes that treat States disparately are hardly novelties," Bader-Ginsburg wrote, citing sports gambling regulations, funding for certain environmental projects and rural drug programs, and even the nuclear waste project at Yucca Mountain, Nevada. She asked, "Do such provisions remain safe given the Court's expansion of equal sovereignty's sway?" and closed her discussion with this prescient warning:
Today's unprecedented extension of the equal sovereignty principle outside its proper domain--the admission of new States--is capable of much mischief.
Much mischief, indeed. Because if Chief Justice Roberts is correct, then many laws enacted--and a lot of spending--by the federal government cannot stand.
Take, for example, the Medicaid program that in 2011 cost the federal and state governments $414 billion and provided health care benefits to 67 million people. To be sure, there is no "equality of the states" when it comes to how the program is paid for. On average, the federal government picks up 57% of the tab, with poorer states like Mississippi and Alabama getting 75% of the funding from Washington. Averaging 21.8% of states' spending, Medicaid is now the largest budget item for most. Medicaid not only pays for a third of nursing home care in the United States; it covers a third of all childbirths. (In Texas, the figure is one-half.) As with Medicare, Medicaid provides insurance for substantially less than private insurers (27% less for children, 20% for adults.)
Ironically, the 2014 start of the Affordable Care Act's expansion of Medicaid would bring even more benefits to the reddest of the red states like Mississippi and Texas now suffering from the highest rates of uninsured residents in the country. But Republicans leaders in these and other states are turning down the gift horse from Washington, choosing instead to leave millions of their residents without health insurance. Worse still, the GOP (as reflected in the 2012 Republican platform and the Paul Ryan budget) wants all federal Medicaid funds turned over to the states for them to administer and spend as they see fit.
Education, too, provides another obvious case of disparate treatment of the states by Congress. Programs like "No Child Left Behind" and "Race to the Top" deliver federal funds based on school performance and implementation of reforms. Unsurprisingly, Republicans want to end these, too, and, as Tennessee Senator Lamar Alexander put it, by "consolidating 62 federal programs into two block grants" to the states.
And from their perspective, why not? After all, federal education funding like Medicaid is generally a sweet deal for Republican states. As this chart produced during Wisconsin GOP Governor Scott Walker's 2011 showdown with the teachers' unions showed, federal funding generally accounts for a much larger share of red state education spending.
The list goes on and on. Red state socialism is real. As a 2007 analysis by the Tax Foundation (above) of federal spending per tax dollar received by state shows, the reddest states generally reaped the most green. (As Politifact rightly noted, the rankings are based on 2005 data. The Tax Foundation is planning an updated study.) Eight of the top 10 beneficiaries of federal largesse voted for John McCain and Mitt Romney for President. Unsurprisingly, all 15 states at the bottom of the list--those whose outflow of tax revenue is funding programs elsewhere in the country--all voted for Barack Obama in 2008 and 2012. Alaska's number three ranking was particularly ironic, given Governor Sarah Palin's farewell message warning her state to "be wary of accepting government largesse; it doesn't come free."
But in John Roberts' America, it apparently shouldn't be coming at all. While federal grants and aid to states is of course a different matter than purchases of product and services or benefits delivered to individual Americans, Roberts' message in Shelby to Congress seems to be this:
From each state according to Uncle Sam's needs; to each state equally in keeping with "the harmonious operation of the scheme upon which the Republic was organized."
That can't be the meaning either of the United States Constitution or the American project. Because when it comes to health care, education, public safety, needed infrastructure and, yes, voting rights, Americans' mutual commitment to life, liberty and the pursuit of happiness cannot end at the state line.