Protecting Sovereignty in the Peripheries: Boundary Maintenance by Courts in Australia, Canada, the United States, and the European Union

Abstract

In its 2012 decision on the Medicaid expansion provision in the Patient Protection and Affordable Care Act, the U.S. Supreme Court ruled that Congress had overstepped the line between constitutional persuasion and unconstitutional coercion. Chief Justice John Roberts reasoned that the provision violated the Constitution by threatening the states with the loss of all their Medicaid funding if they did not comply with Congress’ instructions to expand health care coverage for poor and disabled individuals in their states. Have courts in other federal or federal-like systems recognized the same state sovereignty limitation on the exercise of national power? What judicially created doctrines have been used to maintain the constitutional boundaries between the central government and subsidiary units in the periphery? Are any of these doctrines of constitutional federalism similar to the anti-commandeering and anti-coercion rules in U.S. law, which has been used recently to preclude Congress from conscripting states into carrying out national policies protecting the environment and curbing gun violence, and from coercing the states into accepting any federal conditions on the receipt of federal funding? After tracing the development of the anti-commandeering and anti-coercion rules in U.S. constitutional law, the efforts by courts in Australia, Canada, and the European Union to protect state, provincial, and Member State sovereignty from attempts by the central government to intrude upon their governing autonomy are examined. Comparison of the application of the anti-commandeering and anti-coercion rules in U.S. law and their analogues in Australian law (the doctrine of implied immunity of government instrumentalities), Canadian law (the doctrine of interjurisdictional immunity), and EU law (the principle of subsidiarity) reveals that judicial enforcement in the United States of a strict prohibition against the federal government compelling states to enact or administer its policies is unique. Protecting sovereignty in the periphery is a fundamental constitutional value proclaimed by each court in this comparative study. But the changing nature of center-periphery relations and the demands of governing in the modern era have led courts in Australia, Canada, and the European Union to narrow and even reject state sovereignty doctrines that immunize governing units in the peripheries from central government regulation and control.