Federalism and the Spending Power from Dole to Birmingham Board of Education
Lynn A. Baker
University of Texas School of Law
U of Texas Law, Public Law Research Paper No. 73
This chapter in a forthcoming collection of essays to be published by Cambridge University Press (THE REHNQUIST LEGACY, C. Bradley, ed., forthcoming 2006) discusses Chief Justice Rehnquist's legacy for federalism with particular reference to the spending power. After describing the opinion in Dole and tracing the apparent origins of the five-prong test that Rehnquist set out there and that the Court has never suggested altering, I discuss three later cases: Davis v. Monroe County School Board (1999), Pierce County v. Guillen (2003), and Jackson v. Birmingham Board of Education (2005). Of these, Guillen is the most intriguing. In 2001, the Supreme Court of Washington in Guillen became the first state or federal court to hold a federal statute to exceed Congress's spending power. When the U.S. Supreme Court heard the case, however, Chief Justice Rehnquist (and the rest of the "States' Rights Five") seemed aggressively to avoid reaching the spending power issue even though Guillen arguably presented a relatively easy case of a statute that exceeded Congress's powers under both the Spending Clause and the Commerce Clause.
My tentative thesis is that Guillen can be reconciled with Rehnquist's other Commerce Clause and spending power decisions to date if one acknowledges that what drives his jurisprudence in both areas is a (sometimes) unstated inquiry into whether the congressional statute would regulate an area "where states historically have been sovereign," or whether it instead involves a traditional and appropriate federal function. That is, Rehnquist's legacy in the area of federalism and the spending power may be a quiet, and to date only partially successful, revival of the doctrine he set forth in 1976 in National League of Cities v. Usery, and that the Court in 1985, over his dissent, declared "unsound in principle and unworkable in practice," in Garcia v. San Antonio Metropolitan Transit Authority.
Number of Pages in PDF File: 20
Keywords: federalism, spending powerAccepted Paper Series
Date posted: June 4, 2005
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