Clear Notice for Conditions on Spending, Unclear Implications for States in Federal Healthcare Programs

45 Pages Posted: 28 Mar 2007 Last revised: 29 Nov 2011

See all articles by Nicole Huberfeld

Nicole Huberfeld

Boston University - School of Public Health; Boston University School of Law

Date Written: March 14, 2007


This article explores an important case from the 2005-06 Supreme Court term, Arlington Central School District Board of Education v. Murphy. Murphy is a benchmark for Spending Clause jurisprudence, as the new Roberts Court adopted what was the dissenting view for years, but its significance has gone largely unnoticed. Additionally, Murphy may have critical implications for the federalism revolution and for the country's largest healthcare programs. These broad observations are focused in this article by the example of the Clawback Provision, a new Medicaid requirement that has been challenged by New Jersey, Texas, Maine, Missouri, and Kentucky. The Supreme Court denied original jurisdiction, but the states are likely to proceed in district court (they stand to lose millions of dollars under the Clawback Provision). This article finds that the Murphy analysis alters long-standing Spending Clause doctrine in a way that is likely to narrow Congress' ability to place conditions on federal funds. Also, if the Court was seeking to strengthen the states' position regarding conditions on federal spending, it missed the mark because it ignores the reality of long-standing spending programs and states' inability to reject federal conditions in such programs (as with the Clawback Provision). This piece also observes that Congress could not have anticipated the clarity required by Murphy when drafting the Medicare and Medicaid statutes and that this new standard could have far-reaching effects on these forty-year-old healthcare programs. Ultimately, the article calls for a fresh look at spending power jurisprudence in light of both Murphy and long-entrenched spending programs such as Medicare and Medicaid.

Keywords: Spending Clause, Dole, Medicare, Medicaid, Clawback, Conditions on Spending, Cooperative federalism

JEL Classification: I18, I38, K19

Suggested Citation

Huberfeld, Nicole, Clear Notice for Conditions on Spending, Unclear Implications for States in Federal Healthcare Programs (March 14, 2007). Available at SSRN: or

Nicole Huberfeld (Contact Author)

Boston University - School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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