Academic journal article
By Jensen, Laura S.
Public Administration Review , Vol. 59, No. 2
Charles Wise's "Judicial Federalism: The Resurgence of the Supreme Courts Role in the Protection of State Sovereignty" (Public Administration Review, March/April 1998) provides an informative survey of recent cases in which the U.S. Supreme Court has considered assertions of national authority versus subnational claims of governmental autonomy and decided in favor of the latter. Wise is to be credited for bringing these cases to our attention, for they indeed have significant implications for American federalism and public administration. His brief synopsis, however, overlooks important aspects of some of these Court decisions which potentially render their meaning rather less auspicious than what he portrays. For the Supreme Court's current stance toward state sovereignty to be fully assessed, a closer look at these cases is required, one which better situates them within the larger political context in which they were made and should be interpreted.
Consider first New York v. United States (505 U.S. 144, 1992), in which the State of New York and two of its counties successfully challenged the 1985 Low-Level Radioactive Waste Policy Amendments Act's requirement that the states either regulate the disposal of low-level radioactive waste according to congressional dictates or accept ownership of it ("take title"). Given the contemporary trend coupling federal policy making authority with state and local responsibility for program implementation and administration, advocates of a more balanced federalism have much to cheer in the New York majority's emphatic holding that the U.S. government may not constitutionally "commandeer" state governments and their administrative agencies into the service of federal regulatory purposes. Yet they must not underestimate the fact that in reaching that decision, the New York Court also gratuitously upheld conditions of federal aid that had not even been challenged in the case, reaffirming the government's effectively plenary power to regulate the behavior of subnational governments and individual citizens via the Spending Clause (U.S. Constitution, Article 1, [sections] 8). This is not the first case in which the federal courts have volunteered the notion, in the course of overturning instances of direct regulation, that Congressional goals might be more easily achieved through the "alternate whip of economic pressure and seductive favor" (Maryland v. Environmental Protection Agency, 530 F. 2nd 215, 228, 1975), but the New York majority was remarkably blunt in reminding the political branches about the force of conditional aid: one of two "methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests" (505 U.S. 166). Even those justices dissenting in New York v. U.S. explicitly condoned conditional federal spending schemes. As Justice White put it, the spending power offered the Government a way to enact the "take title" provision "under the Court's standards." Had Congress crafted the Low-Level Radioactive Waste Policy Amendments Act to condition the states' federal grant assistance upon their willingness to accept ownership of or otherwise accept responsibility for the radioactive waste in question, the legislation would easily have passed constitutional muster (505 U.S. 208).
The conditional spending power (i.e., the ability of Congress to attach conditions to the funds it expends) has become a vitally important source of national government authority to monitor and regulate the activities of both subnational governments and American citizens. This is so not only because the U.S. budget has grown and federal spending initiatives increased in number and scope, but especially because: long-standing federal court doctrine permits conditional offers of aid to circumvent most if not all of the restrictions that the U.S. Constitution otherwise imposes on the federal government's authority to regulate the behavior of citizens or the states directly (Jensen, 1993, 1998). …