The Spending Power after NFIB v. Sebelius
11 Pages Posted: 13 Oct 2015
Date Written: October 11, 2015
This Essay is an edited version of remarks presented at the panel on "Limitations Attached to Federal Money" at the 2013 Federalist Society Annual Student Symposium. The Essay begins by taking up two questions: What is the challenge confronting modern spending power doctrine? And what *is* the Court's spending power doctrine after NFIB v. Sebelius? The Essay concludes by posing two additional questions to ponder: Does the spending power doctrine after NFIB, as interpreted by the Roberts group and, in particular, by the joint dissenters, prohibit Congress from hypothetically offering each state federal funds in an amount equal to that state's current annual K through 12 education expenditures, subject to the sole condition that the money be spent only on primary and secondary education? And could Congress in the future avoid a concern that federal funding of an existing program will be impermissibly conditioned on participation by the state in a second new program, simply by simultaneously repealing the old program and reenacting (perhaps even in the same bill) the new, combined program? The Essay concludes by noting that the Court's 1987 five-pronged Dole test seems no longer to be the governing doctrine, but it is far from clear what has replaced it.
Keywords: spending power, Roberts Court, federalism, NFIB v. Sebelius
JEL Classification: H1, H10, H11, H20, H50, H70, K1, K3, K10, K30, K34, K40, K49
Suggested Citation: Suggested Citation