Getting Spending: How to Replace Clear Statement Rules with Clear Thinking About Conditional Grants of Federal Funds
78 Pages Posted: 7 Apr 2004
The use of conditional federal spending has been the target of frequent attacks, both in academia and occasionally in the courts. Although the Supreme Court does not directly police conditional spending legislation in any meaningful way, it does restrict the Spending Clause by means of an actively enforced clear statement rule. Unlike the Spending Clause itself, the rule enjoys near-universal approval, including from such surprising sources as Laurence Tribe and Cass Sunstein. This Article argues that both critics of conditional spending and supporters of the clear statement rule are wrong. Indeed, many of the same arguments that weigh against judicial limitations on the Spending Clause also demonstrate that the rule is unnecessary. For example, I show here that where Congress has no authority to enact regulation directly -- in creating Gun-Free Schools Zones, say -- the States know that Congress must obtain their agreement before any legislation can take effect. That sets the stage for crippling state hold-outs and hold-ups. It is hard to see the need for judicial defense of federalism values when the political process is so effective at achieving the same end. The clear statement rule also seriously undermines conditional spending's usefulness as a fiscal tool for coordinating federal policy. Constitutionally-inspired legislation is especially important in this era of the passive virtues, in which the Constitution is most often enforced by reading a statute or regulation to avoid constitutional doubts. Because federal courts do not have comparable power over state law, and state courts are easily overcome by local politics, the Constitution (in the absence of constitutionally-flavored federal legislation) offers lesser protection against state infringements. Yet the clear-statement rule makes it difficult for spending legislation to fill that void; constitutional reasoning must begin with broad principles, not a minutely detailed code.
Thus, this Article argues that we must not only preserve conditional spending, but also unleash it; it is the only way to preserve constitutional balance, and adapt to an evolving world, in our era of active judicial enforcement of federalism values.
Keywords: Spending, federalism, section five, Boerne, clear statement rules
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