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Supporting State Efforts to End Violence Against Women: Unconstitutional?

Last week, the Senate voted to reauthorize the Violence Against Women Act by a bipartisan vote, an important step forward for the many thousands of women who depend on its protections. But before we forget the Senate debate, we should note not only the surprising resistance the bill met there, but also the specific basis Mike Lee (R-Utah) offered for opposing it. Senator Lee, who sits on the Senate Judiciary Committee and whose views on the Constitution are thus particularly influential, implied that VAWA was unconstitutional.

Senator Lee objected to VAWA’s grants to state and local governments. VAWA provides funding for programs operated by courts, law enforcement, state agencies, local governments, and others, in order to address the needs of victims of domestic violence and sexual assault. In general, recipients must apply to receive these funds. Senator Lee asserted that somehow providing this funding to the state and local governments seeking it compromises states’ rights under the Constitution, because violent crime is regulated primarily by the states. “As a matter of constitutional policy,” Senator Lee stated, “Congress should not seek to impose rules and standards as conditions for federal funding in areas where the federal government lacks constitutional authority to regulate directly.” He also protested that “the strings that Congress attaches to federal funding in the VAWA reauthorization restrict each state’s ability to govern itself.”

Senator Lee’s theory of the Constitution seems to forbid Congress from imposing any sort of standards on the money it gives to state and local governments, even when state and local governments have specifically sought the money and voluntarily assumed the conditions that come with it. This is a radical theory that would make it impossible for Congress to fund the VAWA programs that have been so important for improving the criminal justice response to violent crime against women and for creating coordinated community responses to address the needs of those who experience domestic violence, dating violence, stalking, and sexual assault.

This would perhaps be of passing interest—Senator Lee is after all only one senator, and 68 others voted to reauthorize VAWA despite his concerns--except that the theory he espoused against VAWA reauthorization bears a marked similarity to the constitutional challenge to the Medicaid expansion apparently being given serious consideration by the Supreme Court . Under the Affordable Care Act (ACA), Medicaid eligibility will be expanded to those earning up to 133 percent of the poverty level, or roughly $30,000 a year for a family of four. A group of states, however, has argued that the expansion of Medicaid unconstitutionally violates states’ rights. While every state participates in Medicaid, no state must do so. Each state can decide either to accept federal funding to design and operate its own Medicaid program within the parameters set by the federal government, or turn down that funding and create a totally different program, or no program at all, to provide insurance to low-income individuals. The states challenging the Medicaid expansion argue that because it is politically difficult to turn down Medicaid funding, when the ACA imposed additional conditions on the increased Medicaid funding provided to states, it unconstitutionally coerced the states to spend more on the program.

At oral argument in the ACA cases last month, several justices seemed to be giving serious consideration to this claim,which is in essence Senator Lee’s complaint against VAWA—that imposing federal conditions on federal funding unconstitutionally restricts each state’s ability to govern itself. As Senator Lee’s attack on VAWA shows, this is a theory with the potential to not only cripple Medicaid, but also to eviscerate many other federal programs crucial to women and families, from VAWA to funding for public schools, to child support enforcement efforts, to foster care programs, to the Children’s Health Insurance Program, to safety nets such as SNAP (food stamps), and many more.

During the oral argument in the ACA cases, for example, Justice Ginsburg asked what the challenge to the Medicaid expansion could mean for Title IX, which requires states accepting federal money for education programs not to discriminate on the basis of sex in those programs. If it’s coercive to tell a state that it will lose Medicaid funding if it doesn’t comply with federal rules about how the Medicaid program should operate, Justice Ginsburg asked, wouldn’t it also be coercive to tell a state university, for example, that it had to create an athletic program for girls to comply with Title IX or lose its federal funding? The attorney arguing that the Medicaid expansion unconstitutionally coerces the states offered only a faint reassurance that Title IX “might” be different. “I imagine you might think that” the Constitution nevertheless allowed Congress to pass Title IX to enforce the Equal Protection Clause, he explained to Justice Ginsburg, “and I imagine some of your colleagues might take issue with that.”

If the Supreme Court finds the Medicaid expansion to be unconstitutional, we will likely hear many more arguments like the one Senator Lee offered against VAWA last week. The Supreme Court should instead reject the revolutionary rule that Senator Lee failed to persuade his colleagues in the Senate to adopt. 

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