The Anti-Leveraging Principle and the Spending Clause after NFIB

Samuel R. Bagenstos

University of Michigan Law School

August 13, 2012

Georgetown Law Journal, Vol. 101, No. 4, 2013
U of Michigan Public Law Research Paper No. 286

This article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius, which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation.

Notwithstanding some of the Court’s language, this article contends that the case is not best read as rendering federal spending conditions unconstitutional simply because they are attached to large amounts of federal money, change the terms of participation in entrenched cooperative programs, or tie together separate programs into a package deal. Rather Chief Justice Roberts’s pivotal opinion is best read as adopting an “anti-leveraging principle” that will find coercion only where all three of these conditions are present at the same time. The anti-leveraging principle both makes the most sense of what the Chief Justice actually said in NFIB and does a better job of accommodating the relevant constitutional values than do alternative readings of the case. Although that principle threatens the constitutionality of far fewer conditional-spending laws than do those alternative readings, it raises challenging questions about the constitutionality of certain spending conditions. And it gives states an important new tool in negotiations with federal administrators.

Number of Pages in PDF File: 65

Keywords: Federalism, Spending Clause, Health Care

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Date posted: August 15, 2012 ; Last revised: August 27, 2012

Suggested Citation

Bagenstos, Samuel R., The Anti-Leveraging Principle and the Spending Clause after NFIB (August 13, 2012). Georgetown Law Journal, Vol. 101, No. 4, 2013; U of Michigan Public Law Research Paper No. 286. Available at SSRN: https://ssrn.com/abstract=2128977

Contact Information

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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