Spending Clause Litigation in the Roberts Court

By Bagenstos, Samuel R. | Duke Law Journal, December 2008 | Go to article overview

Spending Clause Litigation in the Roberts Court


Bagenstos, Samuel R., Duke Law Journal


ABSTRACT

Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress' s power under the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's exercise of the spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would--by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court's cases. Rather, the Court is likely to act indirectly--through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court's restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy.

TABLE OF CONTENTS

Introduction
I.  The Failure of Direct Limitations
     A. The Failure of Specific Limiting Doctrines
        1. General Welfare
        2. Nexus
        3. Coercion
     B. The Failure of Motivation
II. The Possibilities of Indirect Limitations
     A. Unenforceability and the Strong Contract Theory
        1. The Theory
        2. The Failure (So Far) in the Cases
        3. Assessment
     B. Notice--The Weak Contract Theory
        1. Possibilities and Limits in the Cases
        2. Assessment
Conclusion

INTRODUCTION

Throughout the Rehnquist Court's "federalism revolution," (1) as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. The spending power seemed to offer Congress a way to circumvent the limitations the Court had imposed on the other legislative powers. Both legislators and scholars therefore offered proposals for reframing as conditional spending legislation those statutes the Court had held to exceed other federal powers. (2) In turn, a number of commentators expressed concern (or in some cases hope) that the enactment of such proposals would prompt the Court to place new limitations on Congress's authority to impose conditions on the receipt of federal money. (3) To defenders of states' rights, the spending power now seemed "[t]he greatest threat to state autonomy," (4) and was thus likely to be the next front in the federalism revolution.

But a funny thing happened on the way to Yorktown. In the last years of the Rehnquist Court, a majority of the Justices seemed to abandon the federalism revolution and to cast doubt on whether there had even been a revolution at all. (5) In 2003, the Court upheld the Family and Medical Leave Act as valid Fourteenth Amendment enforcement legislation (6) in a decision whose reasoning seemed inconsistent with the reasoning of earlier cases in the revolution. (7) And although in 2001 the Court had held that Title I of the Americans with Disabilities Act (ADA) was not valid Fourteenth Amendment enforcement legislation, (8) in 2004 the Court held that Title II of the ADA was, in at least some circumstances, valid Fourteenth Amendment enforcement legislation (9)--a decision that again seemed to reject much of the reasoning of that earlier case. …

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Spending Clause Litigation in the Roberts Court
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