Hastings Constitutional Law Quarterly


Candice Hoke


Reform of health policy, via federal legislation appears to be a primary goal of both the President and Congress. Most of the leading bills introduced in 1993-94 attempt to utilize both state governmental power and the state fisc to achieve federal reforms, and many directly order state governments to enact appropriate legislation and execute the federal programs. After New York v. United States, national regulatory programs are subject to new scrutiny under the Tenth Amendment if they command state governments to implement federal programs. The Supreme Court has also cautioned against uses of the spending power that virtually compel state governments to implement federal policy. This Article analyzes seven leading health reform bills to identify features that raise Tenth Amendment or spending power issues. Certain regulatory models tend to be repeated among the bills, which this Article identifies as problematic forms of federal-state interaction. These regulatory models are susceptible to broad legislative use and are not restricted to the health policy context. This Article evaluates the constitutionality of each model of regulatory instructions, and concludes that some transgress the new Tenth Amendment standards, but that none violate the spending power. The revival of the Tenth Amendment's justiciability is implicitly grounded upon republican constitutional values and appropriately invigorates structural federalism without unduly restricting the federal government's ability to formulate and implement national programs.