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Commandeering, Coercion, and the Deep Structure of American Federalism

57 Pages Posted: 11 Feb 2014 Last revised: 18 Mar 2014

Andrew Coan

University of Arizona, James E. Rogers College of Law

Date Written: February 10, 2014

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

Suggested Citation

Coan, Andrew, Commandeering, Coercion, and the Deep Structure of American Federalism (February 10, 2014). Boston University Law Review, Forthcoming; Univ. of Wisconsin Legal Studies Research Paper No. 1249. Available at SSRN: https://ssrn.com/abstract=2393551 or http://dx.doi.org/10.2139/ssrn.2393551

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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