Federalism's Paradox: The Spending Power and Waiver of Sovereign Immunity

Abstract

In the name of state sovereignty, the current Supreme Court has significantly limited Congress' power to enable individuals to vindicate their civil rights against the states. The Court has found that Congress cannot use the Commerce Power to abrogate sovereign immunity, and has greatly narrowed Congress' power to abrogate sovereign immunity pursuant to the Fourteenth Amendment. These rulings create the danger that states will become virtually unaccountable for violating the civil rights of individuals.

Yet even as it limits those powers of Congress, this Court continues to read Congress' Spending Power as virtually unlimited by state sovereignty. The Court's broad reading of the Spending Power creates a paradox: Congress may use its Spending Power to solicit a state's waiver of sovereign immunity and accomplish goals the Court found unconstitutionally intrusive on state sovereignty when attempted through the use of other means.

So far, the Court has condoned this paradoxical use of the spending power. However, a recent Circuit Court ruling has created a Circuit split on this issue, and it is likely that the Court will re-evaluate its position soon. This article argues that using the Spending Power to enforce civil rights against states is justified by the power's protections for the sovereign dignity of states, the need to assure the supremacy of federal law, and the historic role of the federal government in enforcing civil rights.

Keywords: spending power, civil rights, separation of powers, federalism, sovereign immunity, congressional power

JEL Classification: J7