Judicial Capacity and the Conditional Spending Paradox
University of Arizona, James E. Rogers College of Law
October 10, 2012
2013 Wisconsin Law Review 339
Univ. of Wisconsin Legal Studies Research Paper No. 1211
This Article examines the spending power and anti-commandeering principle through the lens of the author's judicial capacity model of Supreme Court decision-making. Taking the Court's recent decision in NFIB v. Sebelius as a jumping off point, this examination yields three important payoffs: First, it helps to explain the Court's historically broad interpretation of the spending power. Second, it refutes the conventional wisdom that this broad interpretation cannot be reconciled with the anti-commandeering principle -- a view the Article dubs the "conditional spending paradox." Third, it offers a rigorous theoretical basis for predicting that NFIB's spending power holding will be short-lived. This account obviously has significant implications for the spending power and anti-commandeering doctrine. It also contributes to a broader understanding of the influence of judicial capacity on the substance of constitutional law.
Number of Pages in PDF File: 68
Keywords: Judicial Capacity, Spending Power, Spending Clause, Conditional Spending, Commandeering, NFIB v. Sebelius
JEL Classification: K41
Date posted: October 12, 2012 ; Last revised: January 22, 2014
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