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Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation

48 Pages Posted: 7 Nov 2009  

Terry Jean Seligmann

Drexel University Thomas R. Kline School of Law

Date Written: November 6, 2009


The vital role of spending clause legislation in the operation of our government flies below the popular radar. Not many people realize that programs like Social Security, special education, and the current economic stimulus efforts take the form of laws exercising Congress’s power under the spending clause of the constitution. Spending clause statutes exercise this power by imposing conditions on the funding recipients. But this source of expansive federal power is under pressure. The Supreme Court’s conservative members have developed and begun to use more aggressively a clear statement rule of interpretation that, by placing strict requirements regarding the conditions contained in the statutory text, narrows the reach of spending clause legislation. This article provides a comprehensive look at the development and use of the clear statement rule for federal spending legislation. It uses a single statutory scheme, the Individuals with Disabilities Education Act (IDEA), as a lens to examine the extent of reliance on the rule, with particular focus on two recent cases. I review the federalism-based justifications for the rule and recommend a rule of appropriate scope and strength. I conclude that the purpose of giving states notice of their essential obligations under spending legislation is served by a far less rigid version of the rule-one that looks to the core obligations imposed by the statute, and recognizes notice drawn from legislative history, judicial interpretations, and administrative interpretations, in addition to statutory text.

Keywords: Constitutional Law, Legislation, Education, Disability Education, Special Education

Suggested Citation

Seligmann, Terry Jean, Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation (November 6, 2009). Tulane Law Review, Forthcoming; Drexel University Earle Mack School of Law Research Paper No. 2009-A-23. Available at SSRN:

Terry Jean Seligmann (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

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