Federalism, individual rights, and the conditional spending conundrum

Polity

Volumn 33, Issue 2, 2000, Pages 258-282

  Jensen, Laura S ^a  

^a UNIVERSITY OF MASSACHUSETTS   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034366940     PISSN: 00323497     EISSN: None     Source Type: Journal    
DOI: 10.2307/3235490     Document Type: Article

References (138)

1. P.L. 104-193, 110 Stat. 2105 (1996).
2. Gwendolyn Mink, Welfare's End (Ithaca, NY: Cornell University Press, 1998). Before the welfare rights litigation of the 1960s and early 1970s, such rights deprivations were typical of PRWORA's predecessor policies, including the Federal public assistance program Aid to Dependent Children (ADC), later renamed Aid to Families with Dependent Children (AFDC), and state public assistance programs predating ADC/AFDC. See, e.g., Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of Welfare, 1890-1935 (Cambridge, MA: Harvard University Press, 1994), and R. Shep Melnick, Between the Lines: Interpreting Welfare Rights (Washington, DC: Brookings, 1994).
3. Gwendolyn Mink, Welfare's End (Ithaca, NY: Cornell University Press, 1998). Before the welfare rights litigation of the 1960s and early 1970s, such rights deprivations were typical of PRWORA's predecessor policies, including the Federal public assistance program Aid to Dependent Children (ADC), later renamed Aid to Families with Dependent Children (AFDC), and state public assistance programs predating ADC/AFDC. See, e.g., Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of Welfare, 1890-1935 (Cambridge, MA: Harvard University Press, 1994), and R. Shep Melnick, Between the Lines: Interpreting Welfare Rights (Washington, DC: Brookings, 1994).
4. Gwendolyn Mink, Welfare's End (Ithaca, NY: Cornell University Press, 1998). Before the welfare rights litigation of the 1960s and early 1970s, such rights deprivations were typical of PRWORA's predecessor policies, including the Federal public assistance program Aid to Dependent Children (ADC), later renamed Aid to Families with Dependent Children (AFDC), and state public assistance programs predating ADC/AFDC. See, e.g., Linda Gordon, Pitied But Not Entitled: Single Mothers and the History of Welfare, 1890-1935 (Cambridge, MA: Harvard University Press, 1994), and R. Shep Melnick, Between the Lines: Interpreting Welfare Rights (Washington, DC: Brookings, 1994).
5. See John Brigham, The Constitution of Interests: Beyond the Politics of Rights (New York: New York University Press, 1996), concerning the constitutive dimension of law.
6. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
7. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
8. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
9. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
10. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
11. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
12. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
13. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
14. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
15. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
16. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
17. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
18. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
19. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
20. That conditional Federal spending historically has almost uniformly failed to trouble the federal judiciary was perhaps of somewhat less concern while Supreme Court decisions routinely suggested that Congress's authority under the commerce clause was essentially plenary. As Albert Rosenthal metaphorically put it over a decade ago, "If the front door of the commerce power is open, it may not be worth worrying whether to keep the back door of the spending power tightly closed." Congress's potentially diminished authority under the commerce clause in the wake of U.S. v. Lopez and subsequent "federalism" cases, however, makes discussion of conditional Federal spending arguably vital. Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review 39 (1987): 1131; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review 95 (1995): 1919; Lopez, 514 U.S. 549 (1995). This is not to imply that the conditional spending power's danger to federalism and individual rights went unnoticed in the pre-Lopez era, especially within the legal academy and among scholars of federalism and intergovernmental relations. Seminal treatments concerning the government's ability to exert suspect authority by withholding or conditioning government largesse are found in Charles A. Reich, "The New Property," Yale Law Journal 73 (1964): 733-87; Lewis B. Kaden, "Politics, Money, and State Sovereignty: The Judicial Role," Columbia Law Review 79 (1979): 847-97; Seth F. Kreimer, "Allocational Sanctions: The Problem of Negative Rights in a Positive State," Pennsylvania Law Review 132 (1984): 1293-1397; Rosenthal, "Conditional Federal Spending;" Thomas R. McCoy and Barry Friedman, "Conditional Spending: Federalism's Trojan Horse," Supreme Court Review 1988 (1988): 85-127; Richard A. Epstein, "The Supreme Court, 1987 Term-Forward: Unconstitutional Conditions, State Power, and the Limits of Consent," Harvard Law Review 102 (1988): 1-104; Kathleen M. Sullivan, "Unconstitutional Conditions," Harvard Law Review 102 (1989): 1413-1506; and William W. Van Alstyne, "'Thirty Pieces of Silver' for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law," Horvard Journal of Law and Public Policy 16 (1993): 303-26; and David E. Engdahl, "The Spending Power," Duke Law Journal 44 (1994): 1-109. See also Cynthia Cates Colella, "The United States Supreme Court and Intergovernmental Relations," in American Intergovernmental Relations Today: Perspectives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs. NJ: Prentice-Hall, Inc., 1986), 60-62; David B. Walker, Toward a Functioning Federalism (Boston: Little, Brown and Company, 1981), 144-51; Laura S. Jensen, "Subsidies, Strings, and the Courts: Judicial Action and Conditional Federal Spending, The Review of Politics 55 (1993): 491-509; and Martha Derthick, "Intergovernmental Relations in the 1970's," in Changing Patterns in American Federal-State Relations During the 1950's, the 1960's, and the 1970s, ed. Lawrence E. Gelfand and Robert J. Neymeyer (Iowa City: University of Iowa, 1985), 49-59.
21. 514 U.S. 549 (1995).
22. 18 U.S.C. §922(q)(1)(A), cited in Lopez, 549.
23. "Expansion Checked," The Wall Street Journal, 27 April 1995, A14.
24. The Gun Free Schools Act, passed in 1994 while the Lopez decision was being appealed, tied American school districts' receipt of Federal educational aid to the establishment of policies expelling for a minimum of one year students bringing guns to school.
25. "The President's Radio Address, April 29, 1995," Weekly Compilation ol Presidential Documents 31 (Washington, DC: GPO, 1995), 735. It should be noted that Congress also responded immediately to the Lopez decision. On the day that the Court's decision was handed down, Senator Herb Kohl, an original sponsor of the 1990 Gun Free School Zones Act, announced that he planned to introduce legislation that would ensure the constitutionality of the gun ban. David Bradstreet Walker and Matthew W. Hart, "Lopez: The President, the Judiciary and the Congress" (paper presented at the annual meeting of the New England Political Science Association, Worcester, MA, 1 May 1998), 14.
26. "The President's Radio Address, April 29, 1995," Weekly Compilation ol Presidential Documents 31 (Washington, DC: GPO, 1995), 735. It should be noted that Congress also responded immediately to the Lopez decision. On the day that the Court's decision was handed down, Senator Herb Kohl, an original sponsor of the 1990 Gun Free School Zones Act, announced that he planned to introduce legislation that would ensure the constitutionality of the gun ban. David Bradstreet Walker and Matthew W. Hart, "Lopez: The President, the Judiciary and the Congress" (paper presented at the annual meeting of the New England Political Science Association, Worcester, MA, 1 May 1998), 14.
27. Upon Attorney General Reno's advice, Clinton returned to the commerce power, sending Congress a bill that responded directly to the specifics of Lopez's commerce-based ruling. It passed in 1996, making it a Federal criminal offense for anyone to possess or discharge a firearm "that has moved in or that otherwise affects interstate or foreign commerce" at a place that he/she knows or has reasonable cause to believe is a school zone [18 U.S.C. §922(q)(2)(A)]. "Clinton Seeks To Reinstate Ban on Guns," New York Times, 7 May 1995, A23; Walker and Hart, "Lopez," 19.
28. Upon Attorney General Reno's advice, Clinton returned to the commerce power, sending Congress a bill that responded directly to the specifics of Lopez's commerce-based ruling. It passed in 1996, making it a Federal criminal offense for anyone to possess or discharge a firearm "that has moved in or that otherwise affects interstate or foreign commerce" at a place that he/she knows or has reasonable cause to believe is a school zone [18 U.S.C. §922(q)(2)(A)]. "Clinton Seeks To Reinstate Ban on Guns," New York Times, 7 May 1995, A23; Walker and Hart, "Lopez," 19.
29. Legal scholar Lynn Baker has also made this point. "Conditional Federal Spending," 1914.
30. 297 U.S. 1 (1936).
31. Butler, pp. 74-75.
32. Oklahoma v. United States Civil Service Commission, 330 U.S. 127 (1947), upholding a requirement of the Hatch Act, §12, 18 U.S.C. §611 (c).
33. South Dakota v. Dole, 483 U.S. 203 (1987), upholding the National Minimum Drinking Age Act Amendment to the National Surface Transportation Act, 23 U.S.C. §158 (1982 ed., Supp. III); State of Nevada v. Skinner, 884 F. 2d 445 (9th Cir. 1989), upholding a requirement of the Emergency Highway Energy Conservation Act of 1973, an amendment to the Federal Aid Highway Act, 23 U.S.C. §154.
34. City of Mocon v. Marshall, 439 F. Supp. 1209 (M.D. Ga. 1977), upholding a requirement of the Urban Mass Transportation Act, 49 U.S.C.A. §1601 et. seq.
35. See, e.g., Montgomery County v. Colifono, 449 F. Supp. 1230 (D. Md. 1978), aff'd 599 F. 2d 1048 (4th Cir. 1979), and North Carolina ex rel. Morrow v. Califano, 445 F. Supp. 532 (E.D. N.C. 1977), aff'd mem., 435 U.S. 962 (1978), upholding requirements of the National Health Planning and Resources Development Act of 1974, 42 U.S.C. §300k et. seq.; Florida Dep't of Health v. Califano, 449 F. Supp. 274 (N.D. Fla. 1978), aff'd per curiam, 585 F. 2d 150 (5th Cir. 1978), cert. denied, 441 U.S. (1979), upholding a requirement of the Rehabilitation Act of 1973, 29 U.S.C. 701 et. seq.
36. Lawrence County v. Lead-Deadwood School District, 469 U.S. 256 (1985), upholding a requirement of the Payment in Lieu of Taxes Act, 31 U.S.C. §6901 et. seq.
37. Glenpool Utility Services v. Water District No. 2, 861 F. 2d 1211 (10th Cir. 1988), upholding a requirement of the Agricultural Act of 1961, §306(b), 7 U.S.C. §1926.
38. Kansas v. United States, 24 F. Supp. 2d 1192 (1998), upholding the constitutionality of amendments to the Child Support Enforcement Program, 42 U.S.C. §§651-669b, enacted as part of PRWORA.
39. The Rise of a New Federalism: Federal-State Cooperation in the United States (New York: Columbia University Press, 1938), 186.
40. Commission on Intergovernmental Relations, A Report to the President for Transmittal to the Congress (Washington, DC: GPO, June 1955), 120, cited in David B. Walker, The Rebirth of Federalism: Slouching Toward Washington (Chatham, NJ: Chatham House Publishers, 1995), 106.
41. Commission on Intergovernmental Relations, A Report to the President for Transmittal to the Congress (Washington, DC: GPO, June 1955), 120, cited in David B. Walker, The Rebirth of Federalism: Slouching Toward Washington (Chatham, NJ: Chatham House Publishers, 1995), 106.
42. See, e.g., Martha Derthick, The Influence of Federal Grants: Public Assistance in Massachusetts (Cambridge, MA: Harvard University Press, 1970), 3; George F. Break, Intergovernmental Fiscal Relations in the United States (Washington, DC: Brookings, 1967), 79.
43. See, e.g., Martha Derthick, The Influence of Federal Grants: Public Assistance in Massachusetts (Cambridge, MA: Harvard University Press, 1970), 3; George F. Break, Intergovernmental Fiscal Relations in the United States (Washington, DC: Brookings, 1967), 79.
44. U.S. Advisory Commission on Intergovernmental Relations (ACIR), Regulatory Federalism: Policy, Process, Impact and Reform, A-95 (Washington, DC: ACIR, 1984) and Federal Regulation of State and Local Governments: The Mixed Record of the 1980's, A-126 (Washington, DC: ACIR, 1993); Donald F. Kettl, The Regulation of American Federalism (Baltimore: Johns Hopkins University Press, 1987); John Kincaid, "From Cooperative to Coercive Federalism," in American Federalism: The Third Century (special edition of The Annals of the American Academy of Political and Social Science), ed. John Kincaid (Newbury Park, CA: Sage Publications, 1990), 139-52; "From Cooperation to Coercion in American Federalism: Housing, Fragmentation and Preemption, 1780-1992,"
45. U.S. Advisory Commission on Intergovernmental Relations (ACIR), Regulatory Federalism: Policy, Process, Impact and Reform, A-95 (Washington, DC: ACIR, 1984) and Federal Regulation of State and Local Governments: The Mixed Record of the 1980's, A-126 (Washington, DC: ACIR, 1993); Donald F. Kettl, The Regulation of American Federalism (Baltimore: Johns Hopkins University Press, 1987); John Kincaid, "From Cooperative to Coercive Federalism," in American Federalism: The Third Century (special edition of The Annals of the American Academy of Political and Social Science), ed. John Kincaid (Newbury Park, CA: Sage Publications, 1990), 139-52; "From Cooperation to Coercion in American Federalism: Housing, Fragmentation and Preemption, 1780-1992," Journal of Law and Politics 9 (1993): 333-431.
46. U.S. Advisory Commission on Intergovernmental Relations (ACIR), Regulatory Federalism: Policy, Process, Impact and Reform, A-95 (Washington, DC: ACIR, 1984) and Federal Regulation of State and Local Governments: The Mixed Record of the 1980's, A-126 (Washington, DC: ACIR, 1993); Donald F. Kettl, The Regulation of American Federalism (Baltimore: Johns Hopkins University Press, 1987); John Kincaid, "From Cooperative to Coercive Federalism," in American Federalism: The Third Century (special edition of The Annals of the American Academy of Political and Social Science), ed. John Kincaid (Newbury Park, CA: Sage Publications, 1990), 139-52; "From Cooperation to Coercion in American Federalism: Housing, Fragmentation and Preemption, 1780-1992," Journal of Law and Politics 9 (1993): 333-431.
47. U.S. Advisory Commission on Intergovernmental Relations (ACIR), Regulatory Federalism: Policy, Process, Impact and Reform, A-95 (Washington, DC: ACIR, 1984) and Federal Regulation of State and Local Governments: The Mixed Record of the 1980's, A-126 (Washington, DC: ACIR, 1993); Donald F. Kettl, The Regulation of American Federalism (Baltimore: Johns Hopkins University Press, 1987); John Kincaid, "From Cooperative to Coercive Federalism," in American Federalism: The Third Century (special edition of The Annals of the American Academy of Political and Social Science), ed. John Kincaid (Newbury Park, CA: Sage Publications, 1990), 139-52; "From Cooperation to Coercion in American Federalism: Housing, Fragmentation and Preemption, 1780-1992," Journal of Law and Politics 9 (1993): 333-431.
48. U.S. Advisory Commission on Intergovernmental Relations (ACIR), Regulatory Federalism: Policy, Process, Impact and Reform, A-95 (Washington, DC: ACIR, 1984) and Federal Regulation of State and Local Governments: The Mixed Record of the 1980's, A-126 (Washington, DC: ACIR, 1993); Donald F. Kettl, The Regulation of American Federalism (Baltimore: Johns Hopkins University Press, 1987); John Kincaid, "From Cooperative to Coercive Federalism," in American Federalism: The Third Century (special edition of The Annals of the American Academy of Political and Social Science), ed. John Kincaid (Newbury Park, CA: Sage Publications, 1990), 139-52; "From Cooperation to Coercion in American Federalism: Housing, Fragmentation and Preemption, 1780-1992," Journal of Law and Politics 9 (1993): 333-431.
49. Clark, Rise of a New Federalism, 140. Note that state aid programs have also become increasingly conditional, affecting both state-local relations and citizens' state-level constitutional rights. Although this article focuses on national-level conditions of aid due to their scope and their implications for dual sovereignty and the national rights of citizenship, I agree with a reviewer of this article that the root problem is not judicial acceptance of behavioral modification via Federal conditional spending, but rather the willingness of the courts to permit such modification as a quid pro quo for accepting public funds regardless of their source.
50. Speiser v. Randall, 357 U.S. 513 (1958), invalidating a state tax exemption requiring a loyalty oath; Sherbert v. Verner, 374 U.S. 398 (1963), Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), and Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987), invalidating state-level Unemployment Compensation regulations; Shapiro v. Thompson, 394 U.S. 618 (1969), invalidating state-level conditions of aid under the Aid to Families with Dependent Children (AFDC) program of the Social Security Act, 49 Stat. 627 as amended, 42 U.S.C. §§601-609, and Aid to the Permanently and Totally Disabled, 42 U.S.C. §§1351-1355; King v. Smith, 392 U.S. 309 (1968), invalidating state-level conditions of aid under AFDC.
51. Wyman v. James, 400 U.S. 309 (1971), upholding a state-level requirement under AFDC.
52. Harris v. McRae, 448 U.S. 297 (1980), upholding a requirement of the Medicaid program, 79 Stat. 343, as amended, 42 U.S.C. 1396 et. seq. (1976 ed. and Supp. II).
53. United States v. Lee, 455 U.S. 252 (1982), denying a statutory exemption under 26 U.S.C. 1402(g).
54. Lyng v. Castillo, 477 U.S. 635 (1986), upholding a requirement under Sec. 3(i) of the Food Stamp Act of 1964, 78 Stat. 703, as redesignated and amended, 7 U.S.C. 2012.
55. Lyng v. International Union, UAW, 485 U.S. 360 (1988), upholding a requirement of the Food Stamp Act of 1964 as amended by the Omnibus Budget Reconciliation Act of 1981, P.L. 97-35, 95 Stat. 357.
56. Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984), upholding a requirement of Sec. 3 of the Military Selective Service Act, 62 Stat 605, as amended, 50 U.S.C. App. 453.
57. Rust v. Sullivan, 500 U.S. 173 (1991), upholding Sec. 1008 of the Public Health Service Act, 84 Stat. 1506, as amended, 42 U.S.C. 300-300a-6.
58. C.K. v. Shalala, 92 F. 3rd 171 (1996), upholding a "family cap" waiver provision under the AFDC program, 42 U.S.C. §601 et seq.
59. 500 U.S. 173 (1991), 193 (emphasis added).
60. As the Supreme Court explained over seventy-five years ago in Massachusetts v. Mellon, 262 U.S. 447 (1923), 480, a conditional offer of Federal funds "imposes no obligation but simply extends an option which [recipients are] free to accept or reject."
61. Rust, 204, 207-8.
62. Kreimer, "Allocational Sanctions," 1382-93.
63. This situation is particularly ominous given the contemporary scope of governing arrangements involving quasi- and non-governmental entities, whose behavior is neither bound by the strictures of the U.S. Constitution or other statutory controls meant to ensure the appropriate use of public authority. See Robert S. Gilmour and Laura S. Jensen, "Reinventing Government Accountability: Public Functions, Privatization, and the Meaning of 'State Action,'" Public Administration Review 58 (1998): 247-58.
64. Justice Blackmun thus condemned the majority's contention that the abortion gag rule did not impinge the doctor-patient relationship: To hold that the doctor-patient relationship is somehow incomplete where a patient lacks the resources to seek comprehensive health care from a single provider is to ignore the situation of a vast number of Americans. As [was] noted in a different context: "It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live" (Rust, 211-12, n. 3, citation omitted. Blackmun, J., dissenting).
65. Ronald J. Krotoszynski, "Listening to the 'Sounds of Sovereignty' But Missing the Beat: Does the New Federalism Really Matter?," Indiana Law Review 32 (1998): 20-22.
66. Arguments may also, of course, be made against particular uses of the conditional spending power arguably within the constitutional authority of Congress because of their negative implications for state autonomy, intergovernmental relations, and/or citizen rights. The difficulties involved in precisely delimiting the extent of Congress's authority under the spending clause are discussed below.
67. Kreimer, "Allocational Sanctions," 1296-97.
68. As the Supreme Court held in Pennhurst State School and Hospital v. Halderman (451 U.S. 1, 17 (1981)), "legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States [and individuals] agree to comply with federally imposed conditions." Yet there is some recognition among members of the federal judiciary that the "contract analogy ... has only limited application." See American Hospital Ass'n v. Schweiker [721 F. 2d 170 (7th Cir. 1983), 182-83], decided two years after Pennhurst: a grant-in-aid program "is an exercise by the Federal government of its authority under the spending power to bring about certain public policy goals. The government acts by inducing a state or private party to cooperate with the Federal policy by conditioning receipt of federal aid upon compliance by the recipient with federal statutory and administrative directives. The 'conditions' of this arrangement are not the result of a negotiated agreement between the parties but rather are provided by the statute under which the program is administered." State and local governments do lobby Congress to establish new grant programs and/or increase appropriations under existing ones; and the role played by state governors in securing waivers under AFDC and in shaping the terms of PRWORA suggests that conditions of aid are more negotiated now (i.e., more voluntary) than they previously were. Subnational compliance with conditions is moreover not assured by their mere enactment, since the implementation of Federal programs typically depends upon public, private, and non-profit employees at the state and local levels, who historically have resisted the imposition of some conditions. The judiciary's contract analogy is nonetheless problematic, particularly in cases where political or bureaucratic resistance is lacking, for it means that the power to set terms still ultimately belongs to Congress and the executive, especially since conditions may be modified or added to by statute or regulation, changing the rules of the game after grantees have become involved in conditional taxing and spending schemes. The Supreme Court suggested in Pennhurst that it might look unfavorably on retroactively applied conditions of aid, but it has not yet done so, and lower federal courts have allowed them to be imposed. See, e.g., Counsel v. Dow, 849 F. 2d 731 (2nd Cir. 1988), which upheld the retroactive application of a requirement of the Handicapped Children's Protection Act of 1986, P.L. 99-372, 100 Stat. 796, 20 U.S.C. 1415(e)(4)(Supp. IV 1986). Regarding compliance with Federal aid conditions in practice (or the lack thereof), see Andrew J. Polsky, The Rise of the Theraputic State (Princeton: Princeton University Press, 1991), 175, 182-85; and Derthick, Influence of Federal Grants, 195-216.
69. As the Supreme Court held in Pennhurst State School and Hospital v. Halderman (451 U.S. 1, 17 (1981)), "legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States [and individuals] agree to comply with federally imposed conditions." Yet there is some recognition among members of the federal judiciary that the "contract analogy ... has only limited application." See American Hospital Ass'n v. Schweiker [721 F. 2d 170 (7th Cir. 1983), 182-83], decided two years after Pennhurst: a grant-in-aid program "is an exercise by the Federal government of its authority under the spending power to bring about certain public policy goals. The government acts by inducing a state or private party to cooperate with the Federal policy by conditioning receipt of federal aid upon compliance by the recipient with federal statutory and administrative directives. The 'conditions' of this arrangement are not the result of a negotiated agreement between the parties but rather are provided by the statute under which the program is administered." State and local governments do lobby Congress to establish new grant programs and/or increase appropriations under existing ones; and the role played by state governors in securing waivers under AFDC and in shaping the terms of PRWORA suggests that conditions of aid are more negotiated now (i.e., more voluntary) than they previously were. Subnational compliance with conditions is moreover not assured by their mere enactment, since the implementation of Federal programs typically depends upon public, private, and non-profit employees at the state and local levels, who historically have resisted the imposition of some conditions. The judiciary's contract analogy is nonetheless problematic, particularly in cases where political or bureaucratic resistance is lacking, for it means that the power to set terms still ultimately belongs to Congress and the executive, especially since conditions may be modified or added to by statute or regulation, changing the rules of the game after grantees have become involved in conditional taxing and spending schemes. The Supreme Court suggested in Pennhurst that it might look unfavorably on retroactively applied conditions of aid, but it has not yet done so, and lower federal courts have allowed them to be imposed. See, e.g., Counsel v. Dow, 849 F. 2d 731 (2nd Cir. 1988), which upheld the retroactive application of a requirement of the Handicapped Children's Protection Act of 1986, P.L. 99-372, 100 Stat. 796, 20 U.S.C. 1415(e)(4)(Supp. IV 1986). Regarding compliance with Federal aid conditions in practice (or the lack thereof), see Andrew J. Polsky, The Rise of the Theraputic State (Princeton: Princeton University Press, 1991), 175, 182-85; and Derthick, Influence of Federal Grants, 195-216.
70. Kreimer, "Allocational Sanctions," 1297.
71. See, e.g., Massachusetts v. Mellon, 262 U.S. 447, 483 (1923), in which the Commonwealth of Massachusetts challenged the Sheppard-Towner Act's conditional provision of financial aid to states willing to comply with congressionally established policies for reducing maternal and infant mortality. Massachusetts's complaint against enactment of the grant program was held to be a question "political, and not judicial in character, and therefore ... not a matter which admit[ted] of the exercise of the judicial power."
72. See Robert C. Wood, ed., Remedial Law. When Courts Become Administrators (Amherst, MA: University of Massachusetts Press, 1990).
73. See, e.g., Frothingham v. Mellon, 262 U.S. 447 (1923), and Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464 (1982).
74. See, e.g., Flast v. Cohen, 392 U.S. 83 (1968); Bowen v. Kendrick, 487 U.S. 589 (1988); Minnesota Federation of Teachers v. Randall, 891 F. 2d 1354 (8th Cir. 1989); and Lamont v. Woods, 948 F. 2d 825 (2nd Cir. 1991) (notably, all cases involving alleged violations of the First Amendment establishment clause).
75. McAuliffe v. Mayor of New Bedford, 155 Mass. 216, p. 220, 29 N.E. 517, p. 517 (1892).
76. Commonwealth v. Davis, 162 Mass. 510, p. 511, 39 N.E. 113, p. 113 (1895), aff'd, 167 U.S. 43 (1897).
77. See Kreimer, "Allocational Sanctions," 1304-14; Lynn A. Baker, "The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions," Cornell Law Review 75 (1990): 1190-1.
78. See Kreimer, "Allocational Sanctions," 1304-14; Lynn A. Baker, "The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions," Cornell Law Review 75 (1990): 1190-1.
79. Arnett v. Kennedy, 416 U.S. 134 (1974), 153-54. Rehnquist considers the doctrine of the greater and the lesser a "common-sense maxim." Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981), 368 (Rehnquist, J., dissenting). See also Rust v. Sullivan; Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), 345-47; and Baker, "Conditional Federal Spending," 1914-15.
80. See, e.g., Steward Machine Co. v. Davis, 301 U.S. 548 (1937), pp. 590-91; and Pennhurst v. Halderman, 17 n. 13.
81. South Dakota v. Dole, 483 U.S. 203 (1987), 211, citing Steward Machine. 56. South Dakota v. Dole, 207-8 (citations omitted). As many commentators have pointed out, Dole's vague criteria hardly comprise meaningful limits on conditionalism. Given the Court's declaration that "it is for Congress to decided which expenditures will promote the general welfare" [Buckley v. Valeo, 424 U.S. 1 (1976), 90], Congress has no need to be ambiguous in making its expenditures conditional. "Germaneness" holds instinctive appeal for those concerned about crosscutting requirements and crossover sanctions, but so far this criterion has never been used by the Court to declare a spending condition unconstitutional. Even Dole's standard that spending conditions may not violate independent constitutional provisions (such as guarantees of individual rights) has proven vacuous due to the judiciary's fixation with voluntarism and contract. Hence the observation that judicial applications of the doctrine of unconstitutional conditions have been so confused as to form a "minefield to be traversed gingerly." Sullivan, "Unconstitutional Conditions," 1416; see also Engdahl, "The Spending Power," 54-62, on the "inaneness of germaneness." Though the lower federal courts historically have mirrored the Supreme Court's reasoning about the "gentle" commands of the spending power, it must be noted that their adjudicatory record is not quite as uniform as the Supreme Court's. In the late 1980s, Congress was found to have exceeded its constitutional authority in conditioning the District of Columbia's entire annual appropriation upon the enactment of specific legislation by the D.C. City Council. Noting that the threat of financial loss in previous conditional spending challenges had never before reached "a level such as to render inevitable the states' submission to Congress' will," the federal district court held in Clarke v. United States that such conditions violated the Council members' rights of free speech. The Court of Appeals affirmed, asserting that the Federal government "may not disregard the strictures of the Constitution when conferring discretionary benefits" [705 F. Supp. 605 (D.D.C. 1988), 609 (emphasis added); 886 F. 2d 404 (D.C. Cir. 1989), 410. Clarke has so far stood as an aberration rather than the beginning of a shift in judicial thinking about conditionalism. Yet the decision is important in thai it recognizes that a total withdrawal of funds essentially transforms conditional aid into a mandate.
82. South Dakota v. Dole, 483 U.S. 203 (1987), 211, citing Steward Machine. 56. South Dakota v. Dole, 207-8 (citations omitted). As many commentators have pointed out, Dole's vague criteria hardly comprise meaningful limits on conditionalism. Given the Court's declaration that "it is for Congress to decided which expenditures will promote the general welfare" [Buckley v. Valeo, 424 U.S. 1 (1976), 90], Congress has no need to be ambiguous in making its expenditures conditional. "Germaneness" holds instinctive appeal for those concerned about crosscutting requirements and crossover sanctions, but so far this criterion has never been used by the Court to declare a spending condition unconstitutional. Even Dole's standard that spending conditions may not violate independent constitutional provisions (such as guarantees of individual rights) has proven vacuous due to the judiciary's fixation with voluntarism and contract. Hence the observation that judicial applications of the doctrine of unconstitutional conditions have been so confused as to form a "minefield to be traversed gingerly." Sullivan, "Unconstitutional Conditions," 1416; see also Engdahl, "The Spending Power," 54-62, on the "inaneness of germaneness." Though the lower federal courts historically have mirrored the Supreme Court's reasoning about the "gentle" commands of the spending power, it must be noted that their adjudicatory record is not quite as uniform as the Supreme Court's. In the late 1980s, Congress was found to have exceeded its constitutional authority in conditioning the District of Columbia's entire annual appropriation upon the enactment of specific legislation by the D.C. City Council. Noting that the threat of financial loss in previous conditional spending challenges had never before reached "a level such as to render inevitable the states' submission to Congress' will," the federal district court held in Clarke v. United States that such conditions violated the Council members' rights of free speech. The Court of Appeals affirmed, asserting that the Federal government "may not disregard the strictures of the Constitution when conferring discretionary benefits" [705 F. Supp. 605 (D.D.C. 1988), 609 (emphasis added); 886 F. 2d 404 (D.C. Cir. 1989), 410. Clarke has so far stood as an aberration rather than the beginning of a shift in judicial thinking about conditionalism. Yet the decision is important in thai it recognizes that a total withdrawal of funds essentially transforms conditional aid into a mandate.
83. Maryland v. Environmental Protection Agency, 530 F. 2nd (4th Cir. 1975), 228. See also, e.g., District of Columbia v. Train, 521 F. 2d 971 (D.C. Cir. 1975), 993 n. 26, in which it was observed that "state cooperation and participation in federal regulatory programs" is "traditionally" obtained "by offering the states a sufficiently attractive incentive or by threatening to withdraw a federal benefit they are presently receiving."
84. 505 U.S. 144 (1992), 171-72. This case involved a challenge to the Low-Level Radioactive Waste Policy Amendments Act of 1985, legislation that, among other things, required states to either regulate the disposal of low-level radioactive waste according to congressional dictates or accept ownership of it ("take title"). In a decision widely regarded as reaffirming the principles of federalism and state autonomy, the Court ruled that the Act's "take title" provision lay outside Congress's enumerated powers and therefore violated the Tenth Amendment.
85. Engdahl, "The Spending Power," 54-62.
86. New York v. U.S., 166. The other method O'Connor cited was regulation under the authority of the commerce clause, whereby, she explained. Congress has the power "to offer States the choice of regulating ... activity according to federal standards or having state law pre-empted by federal regulation" (167). Note the similarity of the Court's construction of "choice" here and with conditional spending.
87. New York, 158, citing Pennhurst v. Halderman, 17, and South Dakota v. Dole, 207. Note that although only six justices (O'Connor, Rehnquist, Scalia, Kennedy, Souter, and Thomas) joined in the majority opinion in the case, Justice White also specifically condoned conditional spending schemes in his separate opinion (concurring in part and dissenting in part), in which Justices Blackmun and Stevens joined (see 208).
88. Laura S. Jensen, "Federal Authority vs. State Autonomy: The Supreme Court's Role Revisited," Public Administration Review 59 (1999): 97-99. See also Krotoszynski, "Listening;" and Jesse H. Choper, "On the Difference in Importance Between Supreme Court Doctrine and Actual Consequences: A Review of the Supreme Court's 1996-97 Term," Cardozo Law Review 19 (1998): 2259, 2268-71.
89. Laura S. Jensen, "Federal Authority vs. State Autonomy: The Supreme Court's Role Revisited," Public Administration Review 59 (1999): 97-99. See also Krotoszynski, "Listening;" and Jesse H. Choper, "On the Difference in Importance Between Supreme Court Doctrine and Actual Consequences: A Review of the Supreme Court's 1996-97 Term," Cardozo Law Review 19 (1998): 2259, 2268-71.
90. Laura S. Jensen, "Federal Authority vs. State Autonomy: The Supreme Court's Role Revisited," Public Administration Review 59 (1999): 97-99. See also Krotoszynski, "Listening;" and Jesse H. Choper, "On the Difference in Importance Between Supreme Court Doctrine and Actual Consequences: A Review of the Supreme Court's 1996-97 Term," Cardozo Law Review 19 (1998): 2259, 2268-71.
91. Derthick, "Intergovernmental Relations in tne 1970's;" Posner, The Politics of Unfunded Mandates: Whither Federalism? (Washington, DC: Georgetown University Press, 1998).
92. P.L. 104-4.
93. P.L. 104-193.
94. Justice O'Connor for the majority, New York v. U.S., 168.
95. "Unfunded Mandates Reform Act: 1996 and Beyond," Publius: The Journal of Federalism 27 (1997): 53. Posner usefully defines and discusses mandates, including conditions of aid, in Politics of Unfunded Mandates, 4-5.
96. "Unfunded Mandates Reform Act: 1996 and Beyond," Publius: The Journal of Federalism 27 (1997): 53. Posner usefully defines and discusses mandates, including conditions of aid, in Politics of Unfunded Mandates, 4-5.
97. As Marjorie Miller of the Congressional Budget Office (CBO) puts it, UMRAs omission of conditions of Federal aid, or costs incurred due to participation in "voluntary" programs, is a "monstrous huge loop-hole." Miller adds that arguments with Congressional actors over what "counts" as a mandate under UMRA has since the law's enactment required CBO personnel to "act more like lawyers than budget analysts." Remarks at the Short Course on "Implementing Devolution: Federal, State, and Local Perspectives" at the annual meeting of the American Political Science Association, Hall of the States, Washington, D.C., 27 August 1997.
98. Posner, "Unfunded Mandates," 54. See also Posner, Politics of Unfunded Mandates, pp. 160-210: and Conlan, from New Federalism to Devolution: Twenty-Five Years of Intergovernmental Reform (Washington, DC: Brookings, 1998), 258-72, 291.
99. Posner, "Unfunded Mandates," 54. See also Posner, Politics of Unfunded Mandates, pp. 160-210: and Conlan, from New Federalism to Devolution: Twenty-Five Years of Intergovernmental Reform (Washington, DC: Brookings, 1998), 258-72, 291.
100. Posner, "Unfunded Mandates," 54. See also Posner, Politics of Unfunded Mandates, pp. 160-210: and Conlan, from New Federalism to Devolution: Twenty-Five Years of Intergovernmental Reform (Washington, DC: Brookings, 1998), 258-72, 291.
101. Posner, "Unfunded Mandates," 59; Politics of Unfunded Mandates, 206-7.
102. Posner, "Unfunded Mandates," 59; Politics of Unfunded Mandates, 206-7.
103. The vote was 62 to 32, with one member recusing himself. "Drunken Driving Plan Stirs Controversy," Congressional Quarterly Weekly Report 56 (10) (7 March 1998): 555; "Tough Standard on Drunkenness Is Backed," The New York Times, 5 March 1998, A18.
104. The vote was 62 to 32, with one member recusing himself. "Drunken Driving Plan Stirs Controversy," Congressional Quarterly Weekly Report 56 (10) (7 March 1998): 555; "Tough Standard on Drunkenness Is Backed," The New York Times, 5 March 1998, A18.
105. "Tough Standard," A18.
106. When Congress passed the Gun Free School Zones Act, for example, some four-fifths of the states had already enacted similar provisions regarding the possession of firearms near schools. As the late Daniel J. Elazar has observed, many states have little trouble with Federal standards mirroring ones they previously have adopted themselves. American Federalism: A View From the States, 3rd ed. (New York: Harper and Row, 1984), 111. See also Baker, "Conditional Federal Spending," 1935-47.
107. When Congress passed the Gun Free School Zones Act, for example, some four-fifths of the states had already enacted similar provisions regarding the possession of firearms near schools. As the late Daniel J. Elazar has observed, many states have little trouble with Federal standards mirroring ones they previously have adopted themselves. American Federalism: A View From the States, 3rd ed. (New York: Harper and Row, 1984), 111. See also Baker, "Conditional Federal Spending," 1935-47.
108. "Congress Clears Huge Transportation Bill, Restoring Cut-Off Funding to States," Congressional Quarterly Weekly Report 56 (21) (23 May 1998): 1385-87; "What the Highway Bill Does," Congressional Quarterly Weekly Report 56 (28) (11 July 1998): 1892. When incentives versus sanctions were debated with respect to establishing a national minimum drinking age in 1984, sanctions won handily. Sarah F. Liebschutz, "The National Minimum Drinking-Age Law," Publius: The Journal of Federalism 15 (Summer 1985): 39-51.
109. "Congress Clears Huge Transportation Bill, Restoring Cut-Off Funding to States," Congressional Quarterly Weekly Report 56 (21) (23 May 1998): 1385-87; "What the Highway Bill Does," Congressional Quarterly Weekly Report 56 (28) (11 July 1998): 1892. When incentives versus sanctions were debated with respect to establishing a national minimum drinking age in 1984, sanctions won handily. Sarah F. Liebschutz, "The National Minimum Drinking-Age Law," Publius: The Journal of Federalism 15 (Summer 1985): 39-51.
110. "Congress Clears Huge Transportation Bill, Restoring Cut-Off Funding to States," Congressional Quarterly Weekly Report 56 (21) (23 May 1998): 1385-87; "What the Highway Bill Does," Congressional Quarterly Weekly Report 56 (28) (11 July 1998): 1892. When incentives versus sanctions were debated with respect to establishing a national minimum drinking age in 1984, sanctions won handily. Sarah F. Liebschutz, "The National Minimum Drinking-Age Law," Publius: The Journal of Federalism 15 (Summer 1985): 39-51.
111. Note the structural similarity between ISTEA's optional blood alcohol standard and proposals to give cash bonuses to women on welfare who chose to allow Norplant contraceptive devices to be implanted in them.
112. The $58 billion dollar "Department of Transportation and Related Agencies Appropriations Act, 2001," P.L. 106-346, passed by margins of 344-50 in the House and 78-10 in the Senate, and was signed into law by President Clinton on October 23, 2000. According to Senator Frank Lautenberg, the law's new aid condition is "a stick to move things along. We've had years of incentives. They hardly ever work." Legislators in a number of states have vowed to fight the imposition of the .08 standard even at the cost of losing millions of dollars in Federal highway aid. "Transportation Bill Provides Big Spending Increases for Airports, Tightens Drunken Driving Standard," Congressional Quarterly Weekly Report (7 October 2000): 2347.
113. Since the demise of General Revenue Sharing, most if not all Federal funds to states and individuals, including block grants, have been conferred with some sort of strings attached. As many commentators have pointed out, the multitude of grant and entitlement programs, crosscutting conditions, and crossover sanctions have rendered the American governance enormously complex if not dysfunctionally chaotic, a fact that militates against any sort of blanket approval of spending conditions even when they individually appear to work toward wise and constitutionally legitimate outcomes.
114. See, e.g., President Clinton's public comments in support of the .08 standard. "Remarks on Signing a Memorandum on Standards to Prevent Drinking and Driving, March 3, 1998," Weekly Compilation of Presidential Documents 34 (Washington, DC: GPO), 365-66; "Remarks on the Establishment of a National Drunk Driving Standard, October 23, 2000," Weekly Compilation of Presidential Documents 36 (Washington, DC: GPO), 2578-80.
115. See, e.g., President Clinton's public comments in support of the .08 standard. "Remarks on Signing a Memorandum on Standards to Prevent Drinking and Driving, March 3, 1998," Weekly Compilation of Presidential Documents 34 (Washington, DC: GPO), 365-66; "Remarks on the Establishment of a National Drunk Driving Standard, October 23, 2000," Weekly Compilation of Presidential Documents 36 (Washington, DC: GPO), 2578-80.
116. Although the problem of poor citizens' resistance arises most obviously here, state and local governments are also seriously constrained in their decisionmaking with respect to conditional aid due to their political and legal inability to compete with the U.S. government for equivalent, alternative sources of revenue. See Baker, "Conditional Federal Spending," 1963-37.
117. "Government Benefits: A New Look at an Old Gifthorse," New York University Law Review 65 (1990): 247-264, 263. See also Reich, "The New Property."
118. "Government Benefits: A New Look at an Old Gifthorse," New York University Law Review 65 (1990): 247-264, 263. See also Reich, "The New Property."
119. Wald, "New Look at an Old Gifthorse," 263.
120. Wald, "New Look at an Old Gifthorse," 250, 262-63.
121. Krotoszynski, "Listening," 20-22.
122. In addition to the conditions of PRWORA/TANF and the drunken driving standard, for example, the U.S. government required that states receiving funds under the Violent Crime Control and Law Enforcement Act of 1994 make criminals serve at least 85% of their sentences, register violent sex offenders upon their release from prison with local law-enforcement agencies, and report persons who post cash bonds in excess of $10,000 to the Internal Revenue Service. Beyond their impact on the states, all of these conditions of aid had implications for citizens' civil rights and civil liberties. John Kincaid, "The Devolution Tortoise and the Centralization Hare," New England Economic Review (May/June 1998): 28.
123. Justice Stevens, for example, asserts: $Recent developments demonstrate that the political safeguards protecting Our Federalism are effective.$ Printz v. United States, 521 U.S. 898 (1997), 957, Stevens, J., dissenting, capitalization in original.
124. Posner, "Unfunded Mandates," 61, 63-69; Walker, Rebirth, 11-12, 314.
125. Posner, "Unfunded Mandates," 61, 63-69; Walker, Rebirth, 11-12, 314.
126. Witness, for example, President Clinton's 1999 proposal to condition the receipt of Federal educational aid on states and local acceptance of Federal standards on teacher training, classroom discipline, and the promotion of underperforming students. That Federal monies constitute only a small percentage of the nation's total elementary and secondary education budget might mean that grants bearing such conditions could be refused, but given subnational variations in fiscal capacity, that is not guaranteed. "Clinton's School Plan Praised for Goals, if Not Means," The New York Times, 19 January 1999, A11.
127. See Speiser v. Randall for one of the doctrine's classic articulations.
128. Engdahl, "The Spending Power," 69-85.
129. Van Alstyne, "Thirty Pieces of Silver," 305.
130. Matthew D. Adler and Seth F. Kreimer, "The New Etiquette of Federalism: New York, Printz, and Yeskey," Supreme Court Review 1998 (1998): 71-143; Angel D. Mitchell, "Conditional Federal Funding to the States: The New Federalism Demands a Close Examination for Unconstitutional Conditions," Kansas Law Review 48 (1999): 161-195.
131. Matthew D. Adler and Seth F. Kreimer, "The New Etiquette of Federalism: New York, Printz, and Yeskey," Supreme Court Review 1998 (1998): 71-143; Angel D. Mitchell, "Conditional Federal Funding to the States: The New Federalism Demands a Close Examination for Unconstitutional Conditions," Kansas Law Review 48 (1999): 161-195.
132. Wald, "New Look at an Old Gifthorse," 256-59; Gary Feinerman, "Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection," Stanford Law Review 43 (1991): 1369-1415. Critiquing the unconstitutional conditions doctrine, Dorothy E. Roberts has argued for a new constitutional vision that would extend beyond understanding the state's behavior only in terms of negative rights and measuring state action only in terms of current arrangements of wealth and privilege. See "The Only Good Poor Woman: Unconstitutional Conditions and Welfare," Denver University Law Review 72 (1995): 931-948.
133. Wald, "New Look at an Old Gifthorse," 256-59; Gary Feinerman, "Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection," Stanford Law Review 43 (1991): 1369-1415. Critiquing the unconstitutional conditions doctrine, Dorothy E. Roberts has argued for a new constitutional vision that would extend beyond understanding the state's behavior only in terms of negative rights and measuring state action only in terms of current arrangements of wealth and privilege. See "The Only Good Poor Woman: Unconstitutional Conditions and Welfare," Denver University Law Review 72 (1995): 931-948.
134. Wald, "New Look at an Old Gifthorse," 256-59; Gary Feinerman, "Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection," Stanford Law Review 43 (1991): 1369-1415. Critiquing the unconstitutional conditions doctrine, Dorothy E. Roberts has argued for a new constitutional vision that would extend beyond understanding the state's behavior only in terms of negative rights and measuring state action only in terms of current arrangements of wealth and privilege. See "The Only Good Poor Woman: Unconstitutional Conditions and Welfare," Denver University Law Review 72 (1995): 931-948.
135. "Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of funds entails an agreement to the actions." College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S. Ct. 2219 (1999), 2231; see also Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S. Ct. 2199 (1999), and Alden v. Maine, 119 S. Ct. 2240 (1999). See also Printz v. United States, 521 U.S. 898 (1997), another federalism case, in which the majority declined to compare the legislation it was overturning with what could be achieved via conditional spending.
136. New suggestions for the use of the conditional spending power have already emerged. William W. Buzbee, for example, has advocated the use of conditional Federal spending in controlling urban sprawl, arguing that "manipulating the federal financial spigot directly increases the odds that particular federal goals will be considered." "Urban Sprawl, Federalism, and the Problem of Institutional Complexity," Fordham Law Review 68 (1999): 57-136, 108.
137. See Epstein, "Unconstitutional Conditions," 11.
138. See Kincaid, "Values and Value Tradeoffs in Federalism," Publius: The Journal of Federalism 25 (1995): 29-44.