AUSTIN – Professor Richard A. Epstein of the University of Chicago, New York University, and the Hoover Institution, has joined Mario Loyola, director of the Texas Public Policy Foundation’s Center for Tenth Amendment Studies, as a co-author of an op-ed in today’s Wall Street Journal challenging the constitutionality of last year’s federal health care reform law.

Epstein and Loyola contend that the Medicaid expansion provisions in the Patient Protection and Affordable Care Act represent a “grave intrusion on state autonomy” and should be struck down as an unconstitutional coercion of state governments.

“Under the Patient Protection and Affordable Care Act, states have a choice: Expand their Medicaid rolls or bear the full cost of caring for their state’s current Medicaid population, while continuing to subsidize the Medicaid programs of other states,” Epstein and Loyola write. “The constitutional danger of such a scheme has long been recognized. In 1936, the Supreme Court warned in U.S. v. Butler that if conditional federal grants were not restrained the taxing and spending power ‘could become the instrument for the total subversion of the governmental powers reserved to the individual states.'”

“The Medicaid provision of ObamaCare spells the death knell to competition among the states,” Epstein and Loyola continue. “States cannot function as ‘laboratories of democracy’ – as the 10th Amendment intended – if the federal government can use its power to tax and spend to bludgeon all states into conformity.”

The Wall Street Journal column appears one day before the 11th U.S. Circuit Court of Appeals hears oral argument in Florida v. U.S. Department of Health & Human Services, the lawsuit joined by 26 states challenging the new federal health care law’s constitutionality. The Epstein/Loyola column echoes the argument from the Foundation’s amicus curiae brief for the 11th Circuit.

The full text of the column is available online on the Wall Street Journal‘s website.

Richard A. Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution. In 2005 he was named by Legal Affairs magazine as one of the 20 leading legal thinkers in the United States.

Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation and the author of the Texas Public Policy Foundation’s amicus curiae brief in Florida v. U.S. Department of Health & Human Services.

The Texas Public Policy Foundation is a non-profit, free-market research institute based in Austin.

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