Judicial Capacity and the Conditional Spending Paradox
University of Arizona, James E. Rogers College of Law; University of Wisconsin Law School
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: K41Accepted Paper Series
Date posted: October 12, 2012 ; Last revised: January 22, 2014
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