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The AEI Federalism Project conducts and sponsors original research on American federalism, with particular emphasis on federal and state business regulation, legal developments and the role of the courts, and the prospects for rehabilitating a constitutional federalism that puts states in competition for productive citizens and businesses. Through its AG Watch, the Federalism Project monitors and comments on the increasingly active role of state attorneys general.

The AEI Federalism Project disseminates its research results and opinions through frequent conferences and other public events; through the Federalism Outlook, a newsletter written by the Project’s Director, Michael S Greve; through its website; and through books and publications in scholarly journals.

Supreme Court Update

March 7, 2006

Clawback and the Court

posted by Will Wilson @ 10:34 am

Five states have filed a complaint directly to the Supreme Court against the Department of Health and Human Services regarding the “clawback” payment in the Medicare “Part D” program, which requires states to pay a portion of Medicare costs and includes a penalty if the states do not pay. The complaint for Texas, Kentucky, Maine, Missouri, and New Jersey presents three questions:

    1. Is the “clawback,” an unconstitutional tax against the States in their sovereign capacities?
    2. Does the clawback impermissibly commandeer state legislatures to fund the federal Medicare program?
    3. Does the clawback violate the Constitution’s Guarantee Clause by improperly usurping control of essential functions of state government?

Ten states have filed an amici brief.