1 Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act, Pub. L. No. 111-152 (2010) (codified primarily in sections of 42 U.S.C.A. (West 2012)).

2 The number of people who will remain uninsured post-enactment varies depending on the population one takes into account. For example, the ACA does not insure illegal immigrants or those in Native American tribes, so anyone who remains uninsured in those groups will not be subject to the individual mandate or penalty. For some indication of the number of people who will remain uninsured after the ACA comes into force, the Congressional Budget Office estimates that 3.9 million people will pay the penalty for not obtaining insurance (and not being exempt for some other reason) starting in 2016, with a total of twenty-one million non-elderly residents still uninsured. See CONG. BUDGET OFFICE, PAYMENTS OF PENALTIES FOR BEING UNINSURED UNDER THE PATIENT PROTECTION AND AFFORDABLE CARE ACT (2010), available at http://www.cbo.gov/ftpdocs/113xx/doc11379/Individual_Mandate_Penalties-04-30.pdf; see also Ezra Klein, Who Is Left Uninsured by the Health Reform Bill?, WASH. POST, Mar. 22, 2010, http://voices.washingtonpost.com/ezraklein/2010/03/who_is_left_uninsured_by_the_h.html.

3 Kingsdale, John, Health Insurance Exchanges—Key Link in a Better-Value Chain, 362 New Eng. J. Med. 2147, 2149 (2010)CrossRefGoogle Scholar.

4 The individual mandate is the requirement that all U.S. citizens either purchase health insurance or pay a penalty for not doing so. 26 U.S.C.A. § 5000A (West 2012).

5 Moncrieff, Abigail R. & Lee, Eric, The Positive Case for Centralization in Health Care Regulation: The Federalism Failures of the ACA, 20 Kan. J.L. & Pub. Pol’Y 266, 289 (2011)Google Scholar.

6 See generally PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE (1982).

7 Id. at 235-90, 367-74; see also Jost, Timothy S. & Hall, Mark A., The Role of State Regulation in Consumer-Driven Health Care, 31 Am. J.L. & Med. 395, 399 (2005)Google ScholarPubMed (“Despite the variety of … approaches to federalism, the general trend is toward greater federal involvement in health insurance regulation.”).

8 42 U.S.C. § 1396 (2006).

9 Children's Health Insurance Program Reauthorization Act of 2009, Public Law No. 11-3, available at http://www.gpo.gov/fdsys/pkg/PLAW-111publ3/pdf/PLAW-111publ3.pdf.

10 Moncrieff & Lee, supra note 5, at 267-68. Of course, both Medicare, 42 U.S.C. § 1395, and the Military Health System, 10 U.S.C. §§ 1071-1110 (2006), are governed exclusively by the federal government.

11 See, e.g., Weeks Leonard, Elizabeth, State Constitutionalism and the Right to Healthcare, 12 U. Pa. J. Const. L. 1325, 1338 (2010)Google Scholar (defining cooperative federalism programs as those in which a state “receive[s] a percentage-on-the-dollar match from the federal government for every state dollar spent”); Rose-Ackerman, Susan, Cooperative Federalism and Co-optation, 92 Yale L.J. 1344 (1983)CrossRefGoogle Scholar (discussing the desirability of cooperation through federal funding programs vis-à-vis preemption or commandeering state officials).

12 See, e.g., Leonard supra note 11; Rose-Ackerman, supra note 11; Larry E. Ribstein & Bruche H. Kobayashi, The Economics of Federalism (Univ. of Ill. Law & Econ. Working Papers Series, Working Paper No. LE06-001, 2006), available at http://ssrn.com/abstract=875626.

13 For an argument that state-by-state regulation is inappropriate for the healthcare industry as a whole, see Moncrieff & Lee, supra note 5.

14 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1321(c)(1)(B)(ii)(II), 124 Stat. 119, 186 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029.

15 See Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1284, 1291-92 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012) (challenging Medicaid expansion in the ACA as an unconstitutional commandeering of state treasuries).

16 See Kingsdale, supra note 3, at 2147.

17 See generally Enthoven, Alain & Kronick, Richard, A Consumer-Choice Health Plan for the 1990s: Universal Health Insurance in a System Designed to Promote Quality and Economy (pts. 1 & 2), 320 New Eng. J. Med. 29 (1989)CrossRefGoogle Scholar (proposing a universal health insurance plan mandating coverage by employers, where small businesses could aggregate purchasing power in Health Insurance Purchasing Cooperatives).

18 See Timothy S. Jost, Health Insurance Exchanges Under the Affordable Care Act, THE COMMONWEALTH FUND BLOG (July 15, 2010), http://www.commonwealthfund.org/Content/Blog/Jul/Health-Insurance-Exchanges.aspx.

19 See Kingsdale, supra note 3, at 2149.

20 See id.

21 Timothy S. Jost, Health Insurance Exchanges in Health Care Reform Legal and Policy Issues 1-4 (Washington & Lee Pub. Legal Studies Research Paper Series, Working Paper No. 2009-11, 2009), available at http://ssrn.com/abstract=1493369; see also KAISER FAM. FOUND., EXPLAINING HEALTH CARE REFORM: WHAT ARE HEALTH INSURANCE EXCHANGES (2009), available at http://www.kff.org/healthreform/upload/7908.pdf.

22 See, e.g., Kingsdale, supra note 3, at 2149-50 (discussing problems with transparency for individual and small group purchasers in the current health insurance marketplace).

23 That is to say, past proposals, state exchanges, and exchange-like providers may all inform the construction and operation of ACA exchanges.

24 See Federal Employee Health Benefits Program, 5 U.S.C. §§ 8901-8914 (2006) (describing the federal employee health benefit packages and the FEHBP's authority to construct them).

25 Health Security Act, H.R. 3600, 103d Cong. (1993), available at http://www.gpo.gov/fdsys/pkg/BILLS-103hr3600ih/pdf/BILLS-103hr3600ih.pdf. For an account of the failure of Clinton's health reform proposal, see Starr, Paul, What Happened to Health Care Reform?, 20 Am. Prospect 20 (1995)Google Scholar, available at http://www.princeton.edu/∼starr/20starr.html.

26 Merlis, Mark, A Health Insurance Exchange: Prototypes and Design Issues, Nat’L Health Pol’Y F. 6 (2009)Google Scholar, available at http://www.nhpf.org/library/issue-briefs/IB832_HealthExchange_06-05-09.pdf.

27 Id.

28 Id.

29 Id. The California Public Employees’ Retirement System (“CalPERS”) is another often-cited example of an exchange-like provider. Similarly to the FEHBP, CalPERS provides insurance to a large group of state-supported consumers, which gives consumers a choice between a few plans while allowing CalPERS to negotiate benefit packages and premiums in each case. The only difference is that it faces some degree of competition because regional and local governments can opt out and insure themselves through other means. Id. at 7-8; see also Greely, Henry T., Policy Issues in Health Alliances: Of Efficiency, Monopsony, and Equity, 5 Health Matrix 37, 46–50 (1995)Google ScholarPubMed (discussing CalPERS and its then-current state of affairs as a model for the HSA).

30 Health Security Act § 1300. See generally Enthoven & Kronick, supra note 17.

31 With “regional” being defined here as a grouping within a state. Health Security Act § 1301.

32 See Enthoven & Kronick, supra note 17 and citation therein; see also Greely, supra note 29, at 39-45 (discussing the Clinton health alliances as a preamble to a broader discussion to their role in the future in health reform); Zelman, Walter A., The Rationale Behind the Clinton Health Care Reform Plan, 13 Health Aff. 9 (1994)CrossRefGoogle ScholarPubMed (explaining the Health Security Act in general).

33 To be sure, this would have covered a significantly larger proportion of the population than the ACA exchanges do, as ASA exchanges are limited to individuals and small businesses. See generally Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §§ 1311-1312, 124 Stat. 119, 173- 85 (2010). States, however, may extend exchange eligibility to large groups and large employers starting in 2017. See id. §1312(f)(2)(B), 124 Stat. at 184.

34 See Zelman, supra note 32, at 17-20.

35 Kingsdale, supra note 3, at 2147; see Hager, Christie L., Massachusetts Health Reform: A Social Compact and a Bold Experiment, 55 U. Kan. L. Rev. 1313 (2007)Google Scholar (discussing the Massachusetts health reform movement and legislation in detail); Merlis, supra note 26, at 4-5.

36 Merlis, supra note 26, at 4-5.

37 Kingsdale, supra note 3, at 2147.

38 Id.

39 Id. at 2147-48.

40 See Jennings, Christopher C. & Hayes, Katherine J., Health Insurance Reform and the Tensions of Federalism, 362 New Eng. J. Med. 2244, 2245 (2010)CrossRefGoogle ScholarPubMed (describing the ACA's model as “the setting of a federal floor, [with] an expectation of state innovation and implementation, and a federal fallback”). Examples of other minimum requirements include: (1) the Secretary of HHS will set standards for “local performance on clinical quality measures” that all plans within an exchange must meet, Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1311(c)(1)(D)(i), 124 Stat. 119, 174 (2010); (2) exchanges must “utilize a uniform enrollment form,” id. § 1311(c)(1)(F), 124 Stat. at 174; and (3) all exchanges must provide basic consumer outreach services like operate a tollfree telephone assistance hotline and maintain a website to provide information and enroll eligible individuals, id. § 1311(d)(4), 124 Stat. at 176. See generally Patient Protection and Affordable Care Act §1311(d), 124 Stat. at 176-78 (providing the minimum functions of an exchange). States may also create regional or otherwise interstate exchanges provided that these exchanges meet all other standards and are separately approved by the Secretary. Id. § 1311(f)(1), 124 Stat. at 179.

41 Jost, supra note 21, at 3.

42 Kingsdale, supra note 3, at 2149.

43 Id.; see also id. (“[T]he exchange should [also] lower barriers for new competitors: the Health Connector actively solicited the first major new entrant into the Massachusetts insurance market in decades, by offering access to its 200,000-plus enrollees.”) (citing HEALTH CONNECTOR, REPORT TO THE MASSACHUSETTS LEGISLATURE: IMPLEMENTATION OF HEALTH CARE REFORM, FISCAL YEAR 2009 (2009), available at https://www.mahealthconnector.org/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/Health%2520Care%2520Reform/How%2520Insurance%2520Works/ConnectorAnnualReport2009.pdf).

44 See Kingsdale, supra note 3, at 2148.

45 See id. (showing, as an example, that the Connector's administrative budget for 2010 will equal three percent of total premiums while administrative budgets of the private sector for similar markets equal five to twenty percent of the premium). Similarly, Merlis states that the FEHBP held premiums down 1.6% compared to self-insured providers (7% vs. 8.6%). Merlis, supra note 26, at 7 (citing New Performance Benchmarks for Blues Released by Sherlock Company, PLAN MANAGEMENT NAVIGATOR, SHERLOCK CO. (2007), available at www.sherlockco.com/docs/navigator/navigator-07-07.pdf).

46 See Hoffman, Allison K., Oil and Water: Mixing Individual Mandates, Fragmented Markets, and Health Reform, 36 Am. J.L. & Med. 7, 69 (2010)Google ScholarPubMed; JOHN HOLAHAN & LINDA BLUMBERG, URBAN INST., MASSACHUSETTS HEALTH REFORM: SOLVING THE LONG-RUN COST PROBLEM 6-7 (2009), available at http://www.urban.org/UploadedPDF/411820_mass_health_reform.pdf.

47 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1312(d), 124 Stat. 119, 182-83 (2010).

48 See Merlis, supra note 26, at 5 (discussing this potential problem as it relates to the Connector).

49 See HOLAHAN & BLUMBERG, supra note 46, at 6-7; Hoffman, supra note 46, at 69.

50 Patient Protection and Affordable Care Act § 1334(a)(3), 124 Stat. at 903.

51 Id. § 1334(a)(3)-(4), 124 Stat. at 903.

52 The major exception here is the provision allowing for waivers from the federal requirements, available starting in 2017, for any states that can show that they can “provide coverage that is at least as comprehensive as the coverage offered” through the state exchanges established within the ACA. Id. § 1332(b)(1)(A), 124 Stat. at 205. In this way, the ACA set-up is similar to other cooperative federalism schemes that allow states to experiment with more robust programs than called for by the federal government's plan. That said, it remains to be seen how this would play out in practice and whether a radical shift in the scheme could legitimately take hold given the robust requirements around the exchanges and the re-calculation of national regulation of healthcare as a whole through the ACA.

53 See supra Part I and discussion therein.

54 Ribstein & Kobayashi, supra note 12, at 3.

55 See generally Moncrieff & Lee, supra note 5.

56 See generally Ribstein & Kobayashi, supra note 12 (discussing the merits of a federalist system, including the benefits of promoting state governance in certain circumstances over a centralized approach). Scholars often refer to this as “Exit,” because it describes a citizen's ability to leave one state for another. See generally, e.g., Moncrieff & Lee, supra note 5; Ribstein & Kobayashi, supra note 12. The general idea, however, is that, in a world where all citizens are perfectly mobile (they are not), states will compete to bring citizens to their own state through policy differentiation. Competition, therefore, is actually the functional aspect the states bring to bear, while “Exit” describes a citizen's ability to initiate such competition.

57 See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 575 n.18 (1985) (Powell, J., dissenting) (“The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials … .”); Grey, Betsy, The New Federalism Jurisprudence and National Tort Reform, 59 Wash. & Lee L. Rev. 475, 511 (2002)Google Scholar (arguing that state and local governments “are more responsive than Congress to the needs of local citizens”).

58 Mashaw, Jerry L. & Marmor, Theodore R., The Case for Federalism and Health Care Reform, 28 Conn. L. Rev. 115, 117 (1995)Google Scholar.

59 Id.

60 New Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (favorably describing the ability of states to act as “laboratories of democracy”).

61 See Jost & Hall, supra note 7, at 399-400.

62 See, e.g., Holahan, John et al., Which Way for Federalism?, W3 Health Aff. 317, 320-21 (2003)Google Scholar (describing the current federal system as allowing for quick responsiveness to emerging problems and broad support of experimentation).

63 Moncrieff & Lee, supra note 5, at 270.

64 See generally Tiebout, Charles, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956)CrossRefGoogle Scholar.

65 Id.

66 Moncrieff & Lee, supra note 5, at 271.

67 For example, perhaps a state with more Medicaid enrollees would require a more proactive and responsive exchange than a richer state with relatively fewer citizens eligible to enroll in the exchange.

68 Ribstein & Kobayashi, supra note 12, at 5 (citing Oates, Wallace E., An Essay on Fiscal Federalism, 37 J. Econ. Literature 1120 (1999)CrossRefGoogle Scholar); Moncrieff & Lee, supra note 5, at 269; see also CTRS. FOR MEDICARE & MEDICAID SERVS., DEMONSTRATION PROJECTS AND EVALUATION REPORTS (2010), available at https://www.cms.gov/DemoProjectsEvalRpts/ (detailing Medicare's demonstration projects that experiment with new policy ideas through local intermediaries in a similar manner to how states may experiment through Medicaid implementation).

69 See, e.g., Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1311(d)(4), 124 Stat. 119, 176-78 (2010) (mandating minimum functions of the exchange); id. § 1311(c), 124 Stat. at 174-75 (empowering the Secretary of HHS to impose other requirements on the operation of exchanges).

70 Of course, there is some room for policy variation going forward, such as allowing states to include small group insurance plans with individual insurance plans in the same exchange, id. § 1311(b)(2), 124 Stat. at 173-74, or creating a regional exchange in conjunction with other states, id. § 1333(a)(1), 124 Stat. at 206.

71 Redistribution—the ability of any given program to redistribute wealth or benefits to those who need the money or service more—is also commonly noted as a functional advantage of the federal government, but this is essentially just an incidence of uniformity. See Rose-Ackerman, supra note 11, at 1345-48 (arguing for federal preemption of redistributive programs because of the potential for “races to the bottom” and negative spillover effects in redistributive policy at the state level). Moreover, redistributive effects are not necessarily in play here because of the overall scheme of the exchanges and the constituency it aims to serve—a national exchange would not necessarily have any greater redistributive effect than the ACA (particularly given its provisions for increased Medicaid coverage and subsidies for low-income purchasers). Finally, this is a value-laden consideration that is unnecessary to address in this context.

72 Moncrieff & Lee, supra note 5, at 271.

73 Id.

74 See, e.g., Stigler, George J., The Economies of Scale, 1 J.L. & Econ. 54 (1958)CrossRefGoogle Scholar.

75 Moncrieff & Lee, supra note 5, at 271.

76 Id.

77 See generally Sandler, Todd & Culyer, A.J., Joint Products and Multijurisdictional Spillovers, 97 Q.J. Econ. 707 (1982)CrossRefGoogle Scholar; Ribstein & Kobayashi, supra note 12, at 6.

78 Helvering v. Davis, 301 U.S. 619, 644 (1937) (“[State] governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors.”).

79 See generally Thompson, Frank J., New Federalism and Health Care Policy: States and the Old Questions, 11 J. Health Pol. Pol’Y & L. 647 (1986)CrossRefGoogle ScholarPubMed (discussing the phenomenon of “races to the bottom”); Moncrieff, Abigail R., Federalization Snowballs: The Need for National Action in Medical Malpractice Reform, 109 Colum. L. Rev. 844 (2009)Google Scholar (arguing that federal subsidies for healthcare programs allow states to spill over the costs from their inefficient systems onto the federal government).

80 See Rose-Ackerman, supra note 11, at 1345-46.

81 See supra Part II.B and the accompanying text.

82 See Kingsdale, supra note 3, at 2147.

83 See Adler, Matthew D. & Kreimer, Seth F., The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. Ct. Rev. 71, 74–76Google Scholar (explaining that the anti-commandeering doctrine holds that—with the exception of federal duties upon state judges and “generally applicable” statutes that are not targeted directly at state officials—the federal government may not force a state government or its agents to perform a particular task or implement a particular policy).

84 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1321(c)(1)(B)(ii)(II), 124 Stat. 119, 186 (2010) (empowering the Secretary of HHS to “establish and operate” an exchange within the state).

85 Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1284, 1291-92 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012).

86 Patient Protection and Affordable Care Act § 1321(c)(1)(B)(ii)(II), 124 Stat. at 186.

87 Greenblatt, Jennifer L., What's Dignity Got to Do With It?: Using Anti-Commandeering Principles to Preserve State Sovereign Immunity, 45 Cal. West. L.R. 1, 11 (2008)Google Scholar.

88 U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”).

89 Note that state judiciary is not included in this analysis as a function of the Supremacy Clause. See generally id.; New York v. United States, 505 U.S. 144, 178-79 (1992) (holding that, as a matter of the Supremacy Clause, state judicial officials are peculiarly subject to federal demands); Greenblatt, supra note 87. Section 5 of the Fourteenth Amendment may be another limiting factor of the anti-commandeering doctrine. See Pa. Dep't of Corrs. v. Yeskey, 524 U.S. 206, 212 (1998) (suggesting that anti-commandeering limits do not apply to congressional powers pursuant to section 5 of the Fourteenth Amendment by declining to read statute to avoid constitutional infirmity where text of ADA was unambiguous); Adler & Kreimer, supra note 83, at 76-77 (describing the Yeskey opinion as suggesting “more directly what had been implicit in New York and Printz: the limits imposed by those cases do not apply to congressional enactments rooted in Section 5 of the Fourteenth Amendment”).

90 U.S. CONST. amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”).

91 527 U.S. 706, 712-13 (1999); see also Greenblatt supra note 87, at 8-11.

92 U.S. CONST. amend. XI.

93 See generally Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1311, 124 Stat. 119, 173-81; see also supra note 40 and citations therein. States may also create regional or otherwise interstate exchanges provided that these exchanges meet all other standards necessary and are separately approved by the Secretary. See Patient Protection and Affordable Care Act § 1311(f), 124 Stat. at 179; see also Jennings, Christopher C. & Hayes, Katherine J., Health Insurance Reform and the Tensions of Federalism, 362 New Eng. J. Med. 2244, 2245 (2010)CrossRefGoogle ScholarPubMed (describing the ACA's model as “the setting of a federal floor, [with] an expectation of state innovation and implementation, and a federal fallback”).

94 See Patient Protection and Affordable Care Act § 1311(a), 124 Stat. at 173 (providing funds for a state to create an exchange).

95 See generally Grants to States for Medical Assistance Programs, 42 C.F.R. § 430 (2012), available at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title42/42cfr430_main_02.tpl; Payments for Services, 42 C.F.R. § 447 (2012), available at http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&tpl=/ecfrbrowse/Title42/42cfr447_main_02.tpl.; DEP't OF HEALTH & HUMAN SERVS., FEDERAL FINANCIAL PARTICIPATION IN STATE ASSISTANCE EXPENDITURES; FEDERAL MATCHING SHARES FOR MEDICAID, THE CHILDREN's HEALTH INSURANCE PROGRAM, AND AID TO NEEDY AGED, BLIND, OR DISABLED PERSONS FOR OCTOBER 1, 2010 THROUGH SEPTEMBER 30, 2011 (2009) [hereinafter FMAP], available at http://aspe.hhs.gov/health/fmap11.htm.

96 Weeks Leonard, Elizabeth, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 39 Hofstra L. Rev. 111, 147-48 (2010)Google Scholar. Similarly, a state may not complain if its control of federal premium payments is affected by the operation of exchanges by the federal government itself (viz., if a state opts out of creating its own exchange, the premiums that may come with providing insurance for those who use the exchange will be administered by the federal government—a state would not then be able to argue coercion).

97 521 U.S. 898 (1997) (holding that the federal government cannot draft state executive officers into service).

98 Patient Protection and Affordable Care Act § 1321(c)(1)(B)(ii)(II), 124 Stat. at 186.

99 Of course, some states have already covered this population. Massachusetts, for example, now covers all individuals up to 150 percent of the federal poverty level (FPL), with subsidies available for those between 150 and 300 percent of the FPL, and did so through its reform effort before the passage of the ACA. See HOLAHAN & BLUMBERG, supra note 46, at 2.

100 Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, § 1201, 124 Stat. 1029, 1051.

101 Although each court to take up the issue has rejected this claim. See, e.g., infra notes 113-14. It should also be noted that the new enrollees will require less spending by states than current enrollees. See Sara Rosenbaum, A “Customary and Necessary” Program—Medicaid and Health Care Reform, 362 NEW ENG. J. MED. 1952, 1954 (2010) (“Under current law, the federal government pays 50 to 83% of total medical expenditures; for ‘new eligibles’ and the provider-payment increase, the federal share will be 100% of total spending for 2014 through 2016, gradually decreasing to 90% in 2020.”). See generally FMAP, supra note 95.

102 South Dakota v. Dole, 483 U.S. 203, 211-12 (1987).

103 See Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1284, 1291-92 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012).

104 See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (holding that the Supreme Court has “long recognized that Congress may fix the terms on which it shall disburse federal money to the States”). This general concept has also been held true in a number of cases with specific reference to Medicaid. See, e.g., Wilder v. Va. Hosp. Assoc., 496 U.S. 498, 501 (1990) (stating that Medicaid “is a cooperative federal-state program” and that “participation in the program is voluntary”); Fla. Assoc. of Rehab. Facilities v. Fla. Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1211 (11th Cir. 2011) (observing that “[n]o State has to participate in the Medicaid program”).

105 See supra notes 101-03 and citations therein.

106 Florida ex rel. Att’y Gen., 648 F.3d at 1284, 1291 (arguing that Medicaid expansion violates federalism norms by coercing states into paying for expanded access mandated by the federal government).

107 Moncrieff & Lee, supra note 5, at 292 (citing Timothy S. Jost, Implementation and Enforcement of Health Care Reform—Federal Versus State Government, NEW ENG. J. MED. (Jan. 14, 2010), http://www.nejm.org/doi/full/10.1056/NEJMp0911636).

108 MARK A. HALL, THE CONSTITUTIONALITY OF MANDATES TO PURCHASE HEALTH INSURANCE 10 (2009), available at http://www.law.georgetown.edu/oneillinstitute/national-health-law/legalsolutions-in-health-reform/Papers/Individual_Mandates.pdf. See generally Kondrates, Anna et al., Assessing the New Federalism: An Introduction, 17 Health Aff. 17 (1998)CrossRefGoogle Scholar.

109 Kondrates et al., supra note 108, at 17.

110 See Complaint for Declaratory and Injunctive Relief at 5-6, Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010), and 728 F. Supp. 2d 768 (E.D. Va. 2010) (No. 3:10CV188) [hereinafter Virginia Complaint], rev’d, 656 F.3d 253 (4th Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11-420), available at http://healthcarelawsuits.net/pdf/VirginiavSebelius.pdf; Complaint, Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla.) (No 3:10-cv-91), 2010 WL 1038209 [hereinafter Florida Complaint] (complaint includes thirteen states), order clarified, 780 F. Supp. 2d 1307 (N.D. Fla.), aff’d in part, rev’d in part, 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012); Rosenbaum, supra note 101, at 1954; Leonard, supra note 96, at 139 (“If states no longer have a real choice, the federal-state partnership becomes more coercive than cooperative, nudging close to the commandeering line.”); Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937) (holding that federal grants may be unconstitutional if their conditions are so coercive as to pass “the point at which pressure turns into compulsion”).

111 Florida Complaint, supra note 110, at 5.

112 Reply Brief of Petitioners at 4, Florida, No. 11-400 (U.S. Oct. 24, 2011), 2011 WL 5074300.

113 Florida ex rel. Bondi, 780 F. Supp. 2d at 1266-67.

114 Id. at 1267 (stating that “there is simply no support for the state plaintiff's coercion argument in existing law”).

115 See supra notes 41-42 and the accompanying text.

116 See, e.g., Rose-Ackerman, supra note 11.

117 See generally Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1311, 124 Stat. 119, 173-81 (2010).

118 Bulman-Pozen, Jessica & Gerken, Heather K., Uncooperative Federalism, 118 Yale L.J. 1256, 1295–1302 (2009)Google Scholar (discussing the potential positive outcomes of commandeering under the theory of uncooperative federalism).

119 Moncrieff & Lee, supra note 5, at 291-92.