Commentary Magazine


The Cornhusker Highjack and the Constitution

Senator Ben Nelson of Nebraska was handsomely bribed to vote for cloture on the health-care bill. While most states will have to pick up much of the tab for new enrollees in Medicaid beginning in 2017, Nebraska will not. Instead, the federal government will pay for that state’s increased costs.

Such bribery has a long history in Congress, but so far as I know (and I’d be delighted to hear of other, earlier instances), bribes always came in the form of highways, post offices, bridges to nowhere, and other infrastructure, or in offers of higher office for the person being bribed. They were not in the form of a special deal allowing a particular, not impoverished state to have a lower share of costs in an ongoing federal program. There are, of course, plenty of the old-fashioned sorts of bribes in this bill. Connecticut will get a new hospital at federal expense, for instance.

But is it constitutional for the federal government to give some states a better deal on a national program than it does other states? It is not obviously unconstitutional, as, say, having a lower federal income tax rate for Nebraska would be, since Art. I, Sec. 8, requires that “all Duties, Imposts and Excises shall be uniform throughout the United States.” However, one could argue that Nebraskans will be getting what amounts to a rebate on federal taxes through the back door of lower state taxes.

Another constitutional provision, in Art. IV, Sec. 2, provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in Several States.” But this clause has always been interpreted to apply to state action vis-à-vis citizens of other states, forbidding them to discriminate against nonresidents, such as forbidding nonresidents to be admitted to the state bar. The privileges and immunities clause in the Fourteenth Amendment applies specifically to states.

Yet another provision, in Art. I, Sec. 9, requires that “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” The health-care bill’s constitutional underpinning is the commerce clause of Art. I, Sec. 8, giving Congress the power to “regulate Commerce with foreign Nations and among the several States.” Narrowly interpreted, the ports clause is simply a limitation on that power, forbidding the federal government from, say, requiring that all imports of steel flow through the port of Charleston. More broadly interpreted, it can be construed to forbid the federal government from using its powers under the commerce clause to discriminate among the states.

How would the Supreme Court rule here? Well, first one has to ask who would have standing to sue. Individuals almost certainly would not under the first two arguments above, as an individual’s interest is too small. But states might well have standing to sue with regard to the ports clause. How a state so suing would fare is anyone’s guess. A strict constructionist would throw the case out of court. Nebraska, after all, doesn’t have any ports in the 18th-century sense (although it does have a navy). But it is not too great a stretch to say that the bribe that Nelson received violates the clear spirit of the ports clause — that powers under the commerce clause must be applied equally in all states. It was just this type of reasoning that led the Supreme Court to rule in the 1920s that tapping a telephone line required a search warrant under the Fourth Amendment, which, of course, nowhere mentions telephones.