States such as California, Texas, Montana, Nebraska and Pennsylvania all have either declined to apply for waivers out of the testing, accountability, and penalty schemes of No Child Left Behind; or, have had their applications rejected by the Department of Education. This Article argues that these states would have a legitimate challenge to NCLB as unconstitutionally coercive based on the precedent of Sebelius. As discussed more in the sections that follow, not only is NCLB and Title I the largest federal funding program behind Medicaid, it also shares many of the characteristics that the opinions in Sebelius found to be coercive.

Part II of this Article discusses the history of the coercion theory as a theoretical limitation on Congress’s spending power. This Article will focus on the reluctance and difficulty past courts have expressed in formulating a workable limit based on an argument that states are unconstitutionally coerced into accepting federal spending legislation. Part III briefly examines the Affordable Care Act in order to contextualize the Court’s ruling in Sebelius. Part IV discusses the Sebelius decision, focusing on the opinions of Chief Justice Roberts and the joint dissent authored by Justice Scalia. Part V provides a brief introduction and background of the No Child Left Behind Act. Part VI makes the case that NCLB is unconstitutionally coercive based on the decision in Sebelius.