Commandeering, Coercion, and the Deep Structure of American Federalism

Abstract

The anti-commandeering and anti-coercion principles announced in New York v. United States and NFIB v. Sebelius have great potential importance, but the most prominent justification for them is seriously flawed. This Essay elaborates a more persuasive and largely neglected alternative, grounded in the deep structure of American federalism. Simply put, both commandeering and coercive conditional spending transfer control of state governments from their constitutionally designated electoral constituencies to Congress. This threat is probably insufficient to justify the anti-commandeering and anti-coercion principles -- it is only one element of a more complex federalism calculus -- but any persuasive critique or defense of these doctrines must take account of it.

Keywords: Commandeering, Coercion, Conditional Spending, Federalism, Spending Power