Spending Clause Litigation in the Roberts Court

67 Pages Posted: 16 Nov 2008 Last revised: 18 Dec 2008

Date Written: November 15, 2008


Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power under the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would-by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court's cases. Rather, the Court is likely to act indirectly-through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court's restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy.

Keywords: Constitutional Law, Federalism, Spending Power

Suggested Citation

Bagenstos, Samuel R., Spending Clause Litigation in the Roberts Court (November 15, 2008). Duke Law Journal, Vol. 58, No. 3, 2008, Washington U. School of Law Working Paper No. 08-12-04, Available at SSRN: https://ssrn.com/abstract=1302086

Samuel R. Bagenstos (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

HOME PAGE: http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411

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