Judicial Capacity and the Conditional Spending Paradox
This Article examines the spending power and anti-commandeering principle through the lens of the author's judicial capacity model of Supreme Court decision-making. Taking the Court's recent decision in NFIB v. Sebelius as a jumping off point, this examination yields three important payoffs: First, it helps to explain the Court's historically broad interpretation of the spending power. Second, it refutes the conventional wisdom that this broad interpretation cannot be reconciled with the anti-commandeering principle -- a view the Article dubs the "conditional spending paradox." Third, it offers a rigorous theoretical basis for predicting that NFIB's spending power holding will be short-lived. This account obviously has significant implications for the spending power and anti-commandeering doctrine. It also contributes to a broader understanding of the influence of judicial capacity on the substance of constitutional law.
The Coercion Doctrine Invigorated: Conditional Spending Since NFIB v. Sebelius
The federal government has long utilized the practice of attaching conditions to the receipt of its funds. In the few instances that the Supreme Court had reviewed state challenges to conditions, it had ultimately set only minimal limitations on Congress’ spending power. That is why, when the Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius was delivered, a host of scholarly predictions emerged. Some thought the ruling would prompt an unraveling of other conditional spending programs. Others anticipated more indirect, structural changes to flow from the decision. I find that elements of both have occurred. Over the past seven years, federal and state actions have revealed an interesting mix of results. A surge of recent legal challenges have relied on NFIB’s coercion doctrine, but the courts have consistently rejected those challenges. Congress has also been careful when designing new programs to avoid the sort of federal coercion that was struck by the Court in NFIB. CONDITIONAL SPENDING SINCE NFIB V. SEBELIUS 3 Table of
Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments
INTRODUCTION I. DOCTRINE, STRUCTURE, AND THE JUDICIAL ROLE A. The Problem of Doctrine B. Compensating Adjustments and the Judicial Role in Structural Cases 1. Our Adjustable Federalism 2. Incrementalism and Constraint II. FIDELITY AND THE DIRECTION OF DOCTRINAL ADJUSTMENT A. Fidelity and Its Limits 1. Text and History 2. Obligation and Interpretation B. The Case for Adjustment 1. The Constitution's Incompleteness on Federalism 2. Change and Adjustment 3. Compensating Adjustment in Practice C. Objections 1. The Indeterminate Object of Fidelity 2. Finding the Balance Point 3. Has History Moved On? III. THE INSTITUTIONAL AND FUNCTIONAL DETERMINANTS OF FEDERALISM DOCTRINE A. Institutional Choice 1. One Issue, Many Questions 2. The Obligation to Decide 3. The Ubiquity of Judicial Enforcement B. Interpretive Choice 1. Collaborative Enforcement and Institutional Self-Dealing 2. Judicial Decision Making and the Frankfurter Constraint 3. Judicial Competence and Compensating Adjustments C. Underlying Values D. Some Examples 1. Preemption 2. Necessary and Proper CONCLUSION INTRODUCTION Our Constitution establishes a federal structure but says relatively little about what such a structure entails. Virtually every political actor in our system has had something to say about filling in the gaps in this structure: Presidents and Congresses have both extended and voluntarily limited their own power; state governments have protested national actions on some occasions and, on others, urged Congress to act; social movements outside the government have pressed for reform at all institutional levels. Throughout our history, the judiciary has operated alongside these other actors to help define and implement our federal balance. Because the text and history of the Constitution yield few clear answers to federalism questions, the courts have had to work through these issues primarily as a matter of doctrine--that is, judge-made rules that elaborate upon and implement the Constitution's requirements. This judicial function has always been controversial. In the early nineteenth century, for example, South Carolina nullifiers rejected the Supreme Court's claim to authoritatively resolve federalism disputes and instead insisted on political settlement of such questions through negotiations between the national government and the states. (1) In our own era, prominent commentators and even some Supreme Court justices maintain that the Court should stay out of disputes about the boundary between state and national power, leaving that line to be drawn by the national political branches. (2) The issue has become particularly salient over the last decade, as the Rehnquist Court's "Federalist Revival" has reinvigorated the notion of judicially-enforced limits on national power after nearly a half-century of dormancy. This Article undertakes to explore and defend the enterprise of making federalism doctrine. I make three distinct claims. The first is that fidelity to the Constitution requires us to have federalism doctrine. The Constitution is vague on the specific contours of our federalism, and there is considerable evidence that the Founders left many details to be worked out over time. But those uncertainties cannot mask the widely shared commitment at the Founding to some sort of balance between national and state authority. On any of the most plausible accounts of constitutional obligation--not just on an originalist account--that commitment commands our respect today. As Jenna Bednar and William Eskridge have written, "[c]onstitutional law must make some sense of federalism." (3) My second claim is that courts legitimately can--and should--develop innovative doctrinal solutions to the problem of maintaining the federal balance, whether or not those doctrines can be grounded directly in the text and history of the Constitution. …