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Judicial Capacity and the Conditional Spending Paradox

68 Pages Posted: 12 Oct 2012 Last revised: 22 Jan 2014

Andrew Coan

University of Arizona, James E. Rogers College of Law

Date Written: October 10, 2012

Abstract

This Article examines the spending power and anti-commandeering principle through the lens of the author's judicial capacity model of Supreme Court decision-making. Taking the Court's recent decision in NFIB v. Sebelius as a jumping off point, this examination yields three important payoffs: First, it helps to explain the Court's historically broad interpretation of the spending power. Second, it refutes the conventional wisdom that this broad interpretation cannot be reconciled with the anti-commandeering principle -- a view the Article dubs the "conditional spending paradox." Third, it offers a rigorous theoretical basis for predicting that NFIB's spending power holding will be short-lived. This account obviously has significant implications for the spending power and anti-commandeering doctrine. It also contributes to a broader understanding of the influence of judicial capacity on the substance of constitutional law.

Keywords: Judicial Capacity, Spending Power, Spending Clause, Conditional Spending, Commandeering, NFIB v. Sebelius

JEL Classification: K41

Suggested Citation

Coan, Andrew, Judicial Capacity and the Conditional Spending Paradox (October 10, 2012). 2013 Wisconsin Law Review 339 ; Univ. of Wisconsin Legal Studies Research Paper No. 1211. Available at SSRN: https://ssrn.com/abstract=2159978

Andrew Coan (Contact Author)

University of Arizona, James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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