Conditional Federal Spending after Lopez

Abstract

This Article argues that the U.S. Supreme Court should reinterpret the Spending Clause to work in tandem, rather than at odds, with its post-Lopez reading of the Commerce Clause. Any substitute for the standard of review set out in South Dakota v. Dole, however, must reconcile two potentially conflicting goals. It must strive to safeguard both state autonomy and the related principle of a federal government of enumerated powers by restricting Congress from using conditional offers of federal funds in order to regulate the states in ways that it could not directly mandate. At the same time it must preserve for Congress a power to spend that is greater and broader than its power to regulate the states directly.

Thus, this Article proposes that the Court presume invalid that subset of offers of federal funds to the states which, if accepted, would regulate the states in ways that Congress could not directly mandate under its other Article I powers. This presumption could be rebutted by a judicial finding that the offer of funds constitutes "reimbursement spending" rather than "regulatory spending" legislation.

The Article begins by discussing both the problem posed by conditional offers of federal funds to the states and the insights into that problem afforded by traditional formulations of the unconstitutional conditions doctrine. A brief examination of the development of the Supreme Court's jurisprudence in this area and a review of the academic commentary follow. Part II offers three normative arguments which, taken together, demonstrate that the courts should presume invalid those conditional offers of federal funds to the states that seek to regulate them in ways Congress could not achieve directly. Thus, these arguments also explain both why the Dole test needs rethinking and why the proposed test is preferable, if still imperfect. Part III begins with a critique of the major proposals for reforming Spending Clause doctrine that have been offered to date. It then presents the proposed test and explains the operation of, and reasons for, the critical distinction the test makes between "reimbursement spending" and "regulatory spending" legislation. This Part concludes by considering four congressional enactments (two actual and two hypothetical), under both the prevailing Dole test and the proposed test.

Keywords: spending power, commerce clause, conditional federal spending

JEL Classification: K1, K10