Nebraska Attorney General Jon Bruning Calls Drinking Age Unconstitutional

Nebraska Attorney General Jon Bruning (R)

One of the more ridiculous constitutional attacks against the Affordable Care Act is the plaintiff states’ claim that, by expanding Medicaid for states that choose to remain in the program and offering to pay 90 percent of the cost of this expansion, the federal government is somehow “coercing” the states into providing health care to the needy. In an exclusive interview with ThinkProgress’s Scott Keyes, however, Nebraska Attorney General and U.S. Senate candidate Jon Bruning (R), one of the conservative elected officials behind the anti-health care lawsuit, says that even this nonsensical attack on health reform does not go far enough. If it were up to him, a seminal 25 year-old opinion laying out the federal government’s power to work in partnership with states should be overruled as well:

KEYES: What about something like with the transportation bill where the federal government mandates that the states have to have a drinking age of 21 in order to get federal highway money?

BRUNING: Yeah, that’s the Dole case, and, in that particular case, it was about five to seven percent of the state’s transportation funding. . . . I think that’s coercive too, but I understand why the Court let it pass . . . .

KEYES: If I’m hearing you correctly, the drinking age, the string attached to the federal highway is not something that you

BRUNING: No, I think it’s coercive as well, but this Court said it was not . . . I believe it’s coercive in both cases.

KEYES: And unconstitutional?

BRUNING: And unconstitutional, yes.

Watch it:

Eliminating the nationwide drinking age would hardly be the end of the world, but it is important to understand what else is at stake under Bruning’s reading of the Constitution. The national drinking age exists because the federal government offers the states more highway funds if they set a drinking age of 21 — a law that was passed in an effort to reduce drunk driving deaths. States can either take the money, or they can leave it on the table and choose any drinking age they would like, but they are not free to take the federal government’s money and refuse to comply with the conditions attached to it.

This same arrangement is the basis of numerous other essential laws and programs, including the entirety of Medicaid, and most federal funding for public schools and universities. In other words, Bruning’s theory doesn’t just threaten minor laws such as the drinking age, it also could potentially strip health coverage from tens of millions of Medicaid recipients.