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Conditional Spending After NFIB v. Sebelius: The Example of Federal Education Law

Eloise Pasachoff

Georgetown University Law Center

October 25, 2012

American University Law Review, Vol. 62, 2013
Georgetown Public Law Research Paper No. 12-158
Georgetown Law and Economics Research Paper No. 12-038

In NFIB v. Sebelius, the Supreme Court’s recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the expansion of Medicaid in that Act was unconstitutionally coercive and therefore exceeded the scope of Congress’s authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than mere theoretical possibility under the Spending Clause. In the wake of the Court’s decision, commentators have expressed either the concern or the hope that NFIB’s coercion analysis may lead to the undoing of much of the federal regulatory state, which substantially relies on the spending power. This article argues that both this concern and this hope are misplaced. Taking federal education law as a test case for future coercion analysis — since federal funding given to the states for elementary and secondary education is second only to federal funding for Medicaid — the article concludes that NFIB’s coercion inquiry is unlikely to lead to much else being found unconstitutional. The major federal education laws, and by implication other conditional spending laws, will not likely find their demise under the Court’s analysis. Nonetheless, NFIB will likely have some effect on the future of federal education law. It should put a damper on calls to dramatically increase federal education funding; encourage the trend towards smaller grants of limited duration, especially those that bypass the states; result in some structural changes both in funding and enforcement; and, somewhat paradoxically for a decision that found the Medicaid enforcement regime coercive, may lead to greater federal enforcement of conditional spending laws.

Number of Pages in PDF File: 87

Keywords: education, spending clause, regulation

JEL Classification: K00, K30, K39

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Date posted: October 26, 2012 ; Last revised: March 27, 2013

Suggested Citation

Pasachoff, Eloise, Conditional Spending After NFIB v. Sebelius: The Example of Federal Education Law (October 25, 2012). American University Law Review, Vol. 62, 2013; Georgetown Public Law Research Paper No. 12-158; Georgetown Law and Economics Research Paper No. 12-038. Available at SSRN: http://ssrn.com/abstract=2166933

Contact Information

Eloise Pasachoff (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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