Faux Federalism

50 Pages Posted: 27 Apr 2021

See all articles by Amanda Hurst

Amanda Hurst

University of Arkansas School of Law

Date Written: April 26, 2021


This Article exposes a misapplication of federalism as the driving force behind the Supreme Court's extreme narrowing of the 42 U.S.C. § 1983 remedy for beneficiaries of federal-state cooperative spending programs. Originally, the Court applied a presumption, via § 1983's straightforward language, that all spending statutes were covered. The Court's current approach reverses that presumption using a clear statement rule requiring extreme precision. Although this super strict rule is framed in terms of notice, its origin, as well as the Court's rationale surrounding it, reveal that it is a federalism policy choice, which shields states from accountability, despite the huge sums of federal money they have received in exchange for agreeing to comply with federal law. Thus, instead of overruling its precedent and outright declaring § 1983 unavailable for spending programs beneficiaries, the Court has rendered it meaningless via purported statutory construction, leaving beneficiaries - often the neediest -without a remedy and state noncompliance unaddressed.

Federalism requires balancing federal, state, and citizen interests; however, in this context, the Court has repeatedly offset the balance in the state's favor. This one-side application is faux federalism because it works against individual rights - the core focus of the three areas of law underlying § 1983 spending suits: federalism, spending programs, and § 1983. In addition to frustrating the Framers' foremost purpose for adopting our federal system, this faux federalism ignores the increase of federal power post § 1983 and in the spending program context. Finally, it contravenes § 1983's straightforward and expansive language. To correct this imbalance, the Court should (1) dial back federalism's influence from a clear statement rule to an interpretative canon and (2) give the impact of dismissal on individual interests at least equal weight in the balancing. Because, if there is one end that federalism should seek to avoid, it is the inhibition of individual rights.

Keywords: federalism, 1983, section 1983, federal, state, federal state relations, supreme court, cooperative spending programs

JEL Classification: H11, H24, H40, H50, H51, H52, H53, H54, H6, H70,H72,H77,I28,I18,K10

Suggested Citation

Hurst, Amanda, Faux Federalism (April 26, 2021). Kentucky Law Journal, Vol. 110, 2022, Available at SSRN: https://ssrn.com/abstract=3834519

Amanda Hurst (Contact Author)

University of Arkansas School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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