Spending clause litigation in the Roberts Court

Duke Law Journal

Volumn 58, Issue 3, 2008, Pages 345-410

  Bagenstos, Samuel R ^a,b  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

^b WASHINGTON UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 63849131867     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (409)

1. Various commentators, writing in medias res, described the Rehnquist Court's federalism decisions as carrying out a "federalism revolution."See, e.g., Erwin Chemerinsky, The Federalism Revolution, 31 N.M. L. Rev. 7, 30 (2001).
2. Sylvia A. Law, In the Name of Federalism: The Supreme Court's Assault on Democracy and Civil Rights, 70 U. Cin. L. Rev. 367, 370 (2002).
3. Thomas W. Merrill, The Making of the Second Rehnquist Court: A Preliminary Analysis, 47 St. Louis U. L.J. 569, 618 (2003).
4. See generally Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045 (2001).
5. For those who, even at the time, saw those decisions as less than revolutionary, see Charles Fried, The Supreme Court, 1994 Term-Foreword: Revolutions?, 109 Harv. L. Rev. 13, 34-45 (1995).
6. Mark Tushnet, Alarmism Versus Moderation in Responding to the Rehnquist Court, 78 Ind. L.J. 47, 48-52 (2003).
7. Ernest A. Young, Is the Sky Falling on the Federal Government? State Sovereign Immunity, the Section Five Power, and the Federal Balance, 81 Tex. L. Rev. 1551, 1552 (2003) (book review).
8. See S. 928, 107th Cong. (2001) (conditioning federal funding to states on their waiver of sovereign immunity for some violations of the Age Discrimination in Employment Act of 1967).
9. Ann Carey Juliano, The More You Spend, the More You Save: Can the Spending Clause Save Federal Anti-Discrimination Laws?, 46 Vill. L. Rev. 1111, 1168 (2001).
10. Daniel J. Meltzer, Overcoming Immunity: The Case of Federal Regulation of Intellectual Property, 53 Stan. L. Rev. 1331, 1375-80 (2001).
11. Rebecca E. Zietlow, Federalism's Paradox: The Spending Power and Waiver of Sovereign Immunity, 37 Wake Forest L. Rev. 141, 192-93 (2002).
12. cf. Ronald J. Krotoszynski, Jr., Listening to the Sounds of Sovereignty but Missing the Beat: Does the New Federalism Really Matter?, 32 Ind. L. Rev. 11, 17 (1998) ("In sum, even in this brave new world of post-post New Deal federalism, there is really no doubt that South Dakota v. Dole permits Congress to use the spending power to accomplish indirectly that which it may not accomplish directly.").
13. Carlos Manuel Vázquez, Eleventh Amendment Schizophrenia, 75 Notre Dame L. Rev. 859, 864 n.23 (2000) (stating that the Court's continued acceptance of the conditional spending power "suffuses the Court's federalism jurisprudence, threatening to reduce all of it to a matter of form rather than substance").
14. For prominent examples of scholars making such claims, see Lynn A. Baker, Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911, 1914 (1995).
15. Lynn A. Baker & Mitchell N. Berman, Getting off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 Ind. L.J. 459, 460-61 (2003).
16. Daniel O. Conkle, Congressional Alternatives in the Wake of City of Boerne v. Flores: The (Limited) Role of Congress in Protecting Religious Freedom from State and Local Infringement, 20 U. Ark. Little Rock L.J. 633, 674 80 (1998).
17. Daniel J. Meltzer, The Seminole Decision and State Sovereign Immunity, 1996 Sup. Ct. Rev. 1, 53-54.
18. Lynn A. Baker, The Spending Power and the Federalist Revival, 4 Chap. L. Rev. 195, 195 (2001).
19. See, e.g., Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 Fordham L. Rev. 489, 509 (2006) ("[I]t seems fairly clear, at least as of 2006, that the 'federalism revolution' has been substantially slowed, if not stopped in its tracks.").
20. Erwin Chemerinsky, The Assumptions of Federalism, 58 Stan. L. Rev. 1763, 1764 (2006) ("In the last few years of the Rehnquist Court, however, the federalism revolution waned as the Court consistently ruled in favor of federal power.")
21. Mark Tushnet, "Meet the New Boss": The New Judicial Center, 83 N.C. L. Rev. 1205, 1226 (2005) ("The cases are available for more substantial development in the future, but for now the Court has moved back only inches from where the Warren Court left it.").
22. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 740 (2003).
23. For a strong statement of this point, see Suzanna Sherry, The Unmaking of a Precedent, 2003 Sup. Ct. Rev. 231, 232-33. Robert Post expressed a similar view in The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 11-17 (2003).
24. Bd. of Trs. v. Garrett, 531 U.S. 356, 374 (2001).
25. Tennessee v. Lane, 541 U.S. 509, 533-34 (2004).
26. See id. at 538 (Rehnquist, C.J., dissenting) ("Because today's decision is irreconcilable with Garrett and the well-established principles it embodies, I dissent.").
27. Gonzales v. Raich, 545 U.S. 1, 22 (2005).
28. United States v. Lopez, 514 U.S. 549 (1995).
29. United States v. Morrison, 529 U.S. 598 (2000).
30. See, e.g., Jonathan H. Adler, Is Morrison Dead?: Assessing a Supreme Drug (Law) Overdose, 9 Lewis & Clark L. Rev. 751, 753 (2005) ("While the Raich majority purports to be following the doctrinal contours of Lopez and Morrison, it actually represents a repudiation of these prior cases.").
31. Peter J. Smith, Federalism, Instrumentalism, and the Legacy of the Rehnquist Court, 74 Geo. Wash. L. Rev. 906, 918-19 (2006) (contrasting Lopez and Raich). For a balanced assessment of Raich, which considers the case "[a] [b]ad [d]ay for [s]tate [a]utonomy,"see Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival After Gonzales v. Raich, 2005 Sup. Ct. Rev. 1, 21.
32. See Robert A. Schapiro, From Dualist Federalism to Interactive Federalism, 56 Emory L.J. 1, 14 (2006) (noting that, even after the "federalism revolution,""conditional funding remains an effectively unbridled source of federal power").
33. Sabri v. United States, 541 U.S. 600 (2004).
34. Id. at 602.
35. See, e.g., John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 116 n.118 (2004) (finding Sabri "troubling"for this reason); Smith, supra note 14, at 919-20 & n.80 (discussing arguments for the unconstitutionality of 18 U.S.C. § 666). An important pre-Sabri article argued that § 666 was unconstitutional.
36. See Richard W. Garnett, The New Federalism, the Spending Power, and Federal Criminal Law, 89 Cornell L. Rev. 1, 39-84 (2003). For a (hardly disapproving) discussion of the expansiveness of Sabri's understanding of congressional power.
37. see Neil S. Siegel, A Theory in Search of a Court, and Itself: Judicial Minimalism at the Supreme Court Bar, 103 Mich. L. Rev. 1951, 1976-78 (2005).
38. See Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1171-75 (D.C. Cir. 2004) (Sentelle, J., dissenting).
39. Jim C. v. United States, 235 F.3d 1079, 1082-84 (8th Cir. 2000) (en banc) (Bowman, J., joined by Beam, Loken & Bye, JJ., dissenting).
40. See 29 U.S.C. § 794 (2006).
41. See Barbour, 374 F.3d at 1170, cert. denied, 544 U.S. 904 (2005).
42. Lovell v. Chandler, 303 F.3d 1039, 1051 (9th Cir. 2002), cert. denied, 537 U.S. 1105 (2003).
43. Koslow v. Pennsylvania, 302 F.3d 161, 176 (3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003).
44. Robinson v. Kansas, 295 F.3d 1183, 1192 (10th Cir. 2002), cert. denied, 539 U.S. 926 (2003).
45. Vinson v. Thomas, 288 F.3d 1145, 1148 (9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003).
46. Nihiser v. Ohio Envtl. Prot. Agency, 269 F.3d 626, 628-29 (6th Cir. 2001), cert. denied, 536 U.S. 922 (2002).
47. Jim C., 235 F.3d at 1081-82, cert. denied, 533 U.S. 949 (2001).
48. See Cent. Va. Cmty. Coll. v. Katz, 126 S. Ct. 990, 1005 (2006) (holding that Congress may displace state sovereign immunity when legislating pursuant to the Bankruptcy Clause).
49. United States v. Georgia, 126 S. Ct. 877, 882 (2006) (holding that Title II of the ADA validly abrogates state sovereign immunity as applied to cases in which the conduct that violated the statute also violated the Fourteenth Amendment).
50. Simon Lazarus, Federalism R.I.P.? Did the Roberts Hearings Junk the Rehnquist Court's Federalism Revolution?, 56 DePaul L. Rev. 1, 30-35 (2006).
51. I think the Roberts Court is likely to impose at least some limitations on the exercise of other federal powers as well, but that is beyond the scope of my argument here.
52. For a brief suggestion that the Court ought to move in this direction, see Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 Tex. L. Rev. 1, 144-45 (2004).
53. United States v. Butler, 297 U.S. 1 (1936).
54. Id. at 78.
55. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455 (2006).
56. Id. at 2457.
57. See id. at 2464-65 (Ginsburg, J., concurring in part and concurring in the judgment) (agreeing with the Court's conclusion that the statute's language failed to include expert fees without reaching the notice question).
58. Id. at 2458-59 (majority opinion) (emphasis added); see also id. at 2460 ("Thus, the text of 20 U.S.C. § 1415(i)(3)(B) does not authorize an award of any additional expert fees, and it certainly fails to provide the clear notice that is required under the Spending Clause."); id. at 2461 ("Certainly the terms of the IDEA fail to provide the clear notice that would be needed to attach such a condition to a State's receipt of IDEA funds."); id. at 2463 ("Whatever weight this legislative history would merit in another context, it is not sufficient here. . . . In a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds."). For an excellent discussion and critique of Arlington Central, see generally Brian Galle, Federal Grants, State Decisions, 89 B.U. L. Rev. 875 (2008).
59. Nicole Huberfeld, Clear Notice for Conditions on Spending, Unclear Implications for States in Federal Healthcare Programs, 86 N.C.L. Rev. 441, 486-92 (2008).
60. See Sch. Dist. of Pontiac v. Sec'y of the U.S. Dep't of Educ., 512 F.3d 252, 261-73 (6th Cir. 2008), vacated on rehearing en banc, No. 05-2708, 2008 U.S. App. LEXIS 12121 (6th Cir. May 1, 2008).
61. I discuss the most comprehensive previous treatment of indirect limits, Brian Galle, Getting Spending: How to Replace Clear Statement Rules with Clear Thinking About Conditional Grants of Federal Funds, 37 Conn. L. Rev. 155 (2004), in Part II. See infra text accompanying note 330. (Professor Galle extends those arguments in his more recent work. Galle, supra note 31.) It is important to note at the outset the ways in which my analysis differs from Galle's. Galle limits his focus to arguing against the notice principle. My argument, by contrast, is not principally a normative critique. Instead, I (a) show why the Court is not likely to impose direct limits but is likely to impose indirect limits; (b) attempt to describe, with some precision, the different variants of the notice principle; and (c) assess as well the "strong contract theory"adopted by at least one federal court under which conditional spending legislation is not "law"at all.
62. See David E. Engdahl, The Spending Power, 44 Duke L.J. 1, 104-08 (1994). Moreover, to the extent that I am also critical of the notice principle, my arguments are different from Galle's; in particular, Galle's arguments would apply to any federalism-based clear-statement rule, but I accept the validity of such rules in general. See infra note 315. Professors Peter Smith and David Freeman Engstrom have also discussed the notice principle, though their discussions aim more at identifying how that principle should be interpreted (in contexts in which federal agencies interpret ambiguous spending statutes) than on predicting how the Court will apply that principle.
63. See David Freeman Engstrom, Drawing Lines Between Chevron and Pennhurst: A Functional Analysis of the Spending Power, Federalism, and the Administrative State, 82 Tex. L. Rev. 1197 passim (2004)
64. Peter J. Smith, Essay, Pennhurst, Chevron, and the Spending Power, 110 Yale L.J. 1187 passim (2001).
65. South Dakota v. Dole, 483 U.S. 203, 207-11 (1987).
66. See Erwin Chemerinsky, Turning Sharply to the Right, 10 Green Bag 2D 423, 423 (2007) ("Conservatives finally got their court. That is the central message of the Supreme Court's 2006 Term."). For another good discussion of the Roberts Court as a conservative Court.
67. see generally Mark A. Graber, Does It Really Matter? Conservative Courts in a Conservative Era, 75 Fordham L. Rev. 675 (2006).
68. Eric R. Claeys, Raich and Judicial Conservatism at the Close of the Rehnquist Court, 9 Lewis & Clark L. Rev. 791, 817-18 (2005). This is true of judicial liberalism as well. See Duncan Kennedy, Strategizing Strategic Behavior in Legal Interpretation, 1996 Utah L. Rev. 785, 798-800.
69. Professor Richard Fallon argued, before the Rehnquist Court sided with federal power in its last few federalism cases, that "[t]he Court's pro-federalism majority is at least as substantively conservative as it is pro-federalism. When federalism and substantive conservatism come into conflict, substantive conservatism frequently dominates."
70. Richard H. Fallon, Jr., The "Conservative"Paths of the Rehnquist Court's Federalism Decisions, 69 U. Chi. L. Rev. 429, 434 (2002). This is the "policy-focused instrumentalism"that Professor Peter Smith believes was characteristic of Rehnquist Court federalism cases. Smith, supra note 14, at 911-15.
71. Professor Frank Cross argues, persuasively in my view, "that federalism is consistently (and I contend inherently) employed only derivatively, as a tool to achieve some other ideological end, rather than as a principled end in and of itself."
72. Frank B. Cross, Essay, Realism About Federalism, 74 N.Y.U. L. Rev. 1304, 1307 (1999). But even if one does not agree with that statement, it should be plain enough that federalism can be and has been used as such a tool some proportion of the time.
73. For a good overview of the point, see Fallon, supra note 38, at 446-52. In part for this reason, Professor Young suggests that it makes no sense to treat Supreme Court decisions as "liberal"or "conservative": The problem is that it is hard to distinguish between a "preference"for federalism of the sort just described and a good faith legal view about the meaning of the Constitution. In the immunity cases, for instance, how much conceptual daylight is there between a "preference"that states not be subject to suit and a legal conviction that the Constitution contains a strong principle of state immunity? One cannot prove the primacy of political preferences over legal principle if one's definition of political preferences is so broad as to include legal principles. Young, supra note 14, at 14-15 (footnote omitted). It does not particularly matter to me, however, whether one regards the conservative interests I have described as "political preferences"or "good faith legal views."I take no position on the relative weight of "politics"and "law"in Supreme Court decisions (or on whether it makes sense to draw a strong distinction between them). I argue only that conservatism-whether as a "political"or a "legal"principle-is likely to explain and predict the Roberts Court's federalism decisions, all else equal.
74. See Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. Colo. L. Rev. 1139, 1192-94 (2002).
75. See Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 Fordham L. Rev. 545, 562-68 (2006) (reviewing the judicial use of originalism constructs in decisionmaking).
76. For an argument that conservatives should support federalism, irrespective of its effect on conservative programmatic interests, see generally Ernest A. Young, The Conservative Case for Federalism, 74 Geo. Wash. L. Rev. 874 (2006).
77. See Young, supra note 40, at 1198-202.
78. Professor Young sees this, correctly in my view, as a form of conservatism, see id. at 1196, though it is a form of conservatism that is shared by most "conservative"and "liberal"judges. Writing of the Rehnquist Court, Professor Mark Tushnet argued that "Justices in the new regime seek to show that they are technically competent lawyers who do small things very well."Mark Tushnet, The Supreme Court, 1998 Term-Foreword: The New Constitutional Order and the Chastening of Constitutional Aspirations, 113 Harv. L. Rev. 29, 91 (1998). I believe that continues to be true in the Roberts Court.
79. See Fallon, supra note 38, at 491-92 (discussing the Rehnquist Court).
80. See id. at 493 (noting that the Rehnquist Court's federalism cases had "proceeded cautiously along doctrinal paths where previous efforts to protect federalism occasioned embarrassment").
81. I discuss only those limitations that are internal to the spending power; the Court also recognized that Congress exceeds its spending authority if it conditions a grant on conduct that independently violates the Constitution. See South Dakota v. Dole, 483 U.S. 203, 210-11 (1987) ("Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress' broad spending power.").
82. Id. at 207.
83. Id. (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)).
84. Id. at 211 (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937)).
85. Professor Michele (Landis) Dauber traces the doctrine even earlier, to the turn of the twentieth century. See Michele Landis Dauber, Judicial Review and the Power of the Purse, 23 Law & Hist. Rev. 451, 452-53 (2005). But it is fair to say that the New Deal settlement cemented deference firmly in the law. 52. Helvering v. Davis, 301 U.S. 619 (1937).
86. Id. at 645.
87. Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).
88. See id. at 90-91.
89. South Dakota v. Dole, 483 U.S. 203, 207 (1987).
90. Id. at 208 (quoting Helvering, 301 U.S. at 645).
91. John C. Eastman, Restoring the "General"to the General Welfare Clause, 4 Chap. L. Rev. 63, 65 (2001).
92. See id. at 72-87.
93. Robert G. Natelson, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1, 49 (2003).
94. See Graber, supra note 36, at 685.
95. Lochner v. New York, 198 U.S. 45 (1905).
96. For a good effort to connect invigorated judicial review of "general welfare"with what is understood to be the mistake of Lochner, see Larry Yackle, Lochner: Another Time, Another Place, 85 B.U. L. Rev. 765, 777 (2005). It is obvious enough that the legislative branch must be entitled to decide what counts as the public interest in general. The Court could second-guess Congress at that level of generality only by sounding very much like Justice Peckham explaining why the Bake Shop Act didn't further the public health. Just as choosing among public-regarding purposes is for state legislatures in police power cases, selecting among public-regarding ends must equally be left to Congress in spending power cases. Id. (footnote omitted).
97. See, e.g., David E. Bernstein, Lochner v. New York: A Centennial Retrospective, 83 Wash. U. L.Q. 1469, 1521-25 (2005).
98. See Graber, supra note 36, at 685 ("Prominent conservative scholars have made constitutionally reasonable arguments that the Court in Lochner v. New York correctly held that maximum hour laws were constitutionally suspect. Nevertheless, the vast majority of conservative Justices and scholars still maintain that Lochner was a gross abuse of the judicial power."(footnotes omitted)). As Professor Simon Lazarus shows, that face of Bickellian restraint was front and center in Justice John Roberts's confirmation hearings. See Lazarus, supra note 23, at 14-18.
99. See, e.g., Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution 47 (1998)
100. Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence 49-50 (1993).
101. Edward White, the Constitution and the New Deal 246 (2000).
102. But see David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 Geo. L.J. 1, 21-31 (2003) (arguing that although pre-Lochner lower-court cases rested on opposition to class legislation, Lochner reflected a shift to a notion of fundamental individual rights)
103. Robert C. Post, Defending the Lifeworld: Substantive Due Process in the Taft Era Court, 78 B.U. L. Rev. 1489, 1502-03 (1998) (arguing that the substantive due process decisions of the Taft Court, rather than resting on opposition to class legislation, represented an effort to protect the decisions of "everyday life"from regulation). For a rejoinder to Professors Bernstein and Post.
104. see generally Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B.U. L. Rev. 881 (2005).
105. Professor Jerry Mashaw best captures the interest-group theory's view of legislation: "[It is the] vector sum of political forces expressed through some institutional matrix which has had profound, but probably unpredictable and nontraceable, effects on the policies actually expressed. There is no reason to believe that these expressions represent either rational instrumental choices or broadly acceptable value judgments."
106. Jerry L. Mashaw, The Economics of Politics and the Understanding of Public Law, 65 Chi-Kent L. Rev. 123, 134 (1989). For a good overview of the theories of regulation that derived from or reacted to post-war pluralism.
107. see Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 Colum. L. Rev. 1, 31-86 (1998).
108. See Einer Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L.J. 31, 44-48 (1991).
109. See id. at 49-59.
110. Or not. Education funding, one might say, is for the "special" welfare of children, parents, and teachers.
111. See Andrew Reschovsky & Jennifer Imazeki, Let No Child Be Left Behind: Determining the Cost of Improving Student Performance, 31 Pub. Fin. Rev. 263, 265 (2003).
112. Eastman, supra note 59, at 65.
113. To be sure, the "levels-of-abstraction problem"is common in constitutional adjudication, Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L.J. 1063, 1084-85 (1981).
114. see also Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1372-73 (1984) (making the same point), and it arises especially frequently when applying theories of equal treatment. For an example from the disability law context.
115. see Samuel R. Bagenstos, The Future of Disability Law, 114 Yale L.J. 1, 45-50 (2004).
116. See No Child Left Behind Act of 2001, Pub. L. 107-110, tit. I, pt. C, 115 Stat. 1425, 1571-80 (codified at 20 U.S.C. §§ 6391-99 (2006)).
117. Eastman, supra note 59, at 65.
118. See Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico and Pandemic Influenza, 2006, Pub. L. No. 109-148, div. B, 119 Stat. 2680, 2745-82 (2005).
119. Cf. Eastman, supra note 59, at 79 (stating that "the Fourth Congress did not even believe it had the power to provide relief to the citizens of Savannah, Georgia after a devastating fire destroyed the entire city,"because such an appropriation was not for the "general"welfare). There is reason to doubt Professor Eastman's account of the original understanding. As Professor Michele (Landis) Dauber has shown, the federal government frequently provided disaster relief in the early republic; although constitutional limitations were sometimes asserted in opposition to disaster relief bills in Congress, concerns about sectional fairness and the sympathy for particular disaster victims were far more important.
120. See Michele L. Landis, "Let Me Next Time Be 'Tried by Fire'": Disaster Relief and the Origins of the American Welfare State 1789-1874, 92 Nw. U. L. Rev. 967, 998-1027 (1998).
121. One might object that the last of these is not really about the "general welfare."But that objection rests on the contestable normative view that economic welfare is the only kind of welfare that is relevant under the spending power. Cf. Elhauge, supra note 69, at 49-59 (emphasizing that wealth maximization (that is, economic efficiency) is not the only normative standard that can be used as a baseline for assessing the desirability of a law). For what it's worth, the Supreme Court has long held that the power to spend for the general welfare includes the power to spend to satisfy purely moral obligations. See Dauber, supra note 51, at 453-56.
122. Id. at 84. In Professor Eastman's account, Congress typically adhered to this line, but not always. Id. at 81.
123. Nat'l League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit. Auth., 469 U.S. 528 (1985).
124. See Garcia, 469 U.S. at 538-40 (citing cases in which the Supreme Court and lower courts attempted to delineate a protected sphere of state government activity by looking to what were "traditional"and "integral"state functions).
125. The Court identified several problems with focusing on formal distinctions in the state immunity context: We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is "integral"or "traditional."Any such rule leads to inconsistent results at the same time that it disserves principles of democratic selfgovernance, and it breeds inconsistency precisely because it is divorced from those principles.
126. Id. at 546-47.
127. See Reno v. Condon, 528 U.S. 141, 148 (2000) (agreeing that the enactment of the Driver's Privacy Protection Act "is a proper exercise of Congress' authority to regulate interstate commerce under the Commerce Clause,"without consideration of whether it constitutes an "integral"or "traditional"government function). In its Dormant Commerce Clause jurisprudence, the Court has continued to invoke the concept, seemingly discredited in Garcia, of "traditional government functions."
128. See, e.g., Dep't of Revenue v. Davis, 128 S. Ct. 1801, 1811 (2008) (upholding Kentucky law exempting interest on municipal bonds issued by the state or its subdivisions, but not interest on municipal bonds issued by other states or their subdivisions, from state taxation, and explaining that the contrary ruling would properly spark "apprehension . . . about 'unprecedented . . . interference' with a traditional government function"(second alteration in original) (quoting United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 127 S. Ct. 1786, 1795 (2007))). I do not think that Davis, which declined to invalidate "a century-old taxing practice, presently employed by 41 States, and affirmatively supported by all of them,"id. (citations omitted), suggests that the Court will be comfortable employing formalist notions of traditional state functions to invalidate federal spending legislation. For those who are of a mind to avoid the so-called mistake of Lochner, there is a big difference between upholding and invalidating a democratically enacted statute.
129. On nexus requirements in land-use law, see Mark Fenster, Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions, 58 Hastings L.J. 729, 741-45 (2007). On the nexus requirement in unconstitutional conditions law generally.
130. see Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1456-76 (1989).
131. See, e.g., South Dakota v. Dole, 483 U.S. 203, 208 n.3 (1987) ("Our cases have not required that we define the outer bounds of the 'germaneness' or 'relatedness' limitation on the imposition of conditions under the spending power.").
132. On the importance of pretext analysis to assessments of federal power.
133. see J. Randy Beck, The Heart of Federalism: Pretext Review of Means-End Relationships, 36 U.C. Davis L. Rev. 407, 408-11 (2003).
134. See Jonathan H. Adler, Judicial Federalism and the Future of Federal Environmental Regulation, 90 Iowa L. Rev. 377, 447-52 (2005).
135. Pierce County v. Guillen, 537 U.S. 129, 147 (2003).
136. See Lynn A. Baker, Lochner's Legacy for Modern Federalism: Pierce County v. Guillen as a Case Study, 85 B.U. L. Rev. 727, 750-51 (2005).
137. Dole, 483 U.S. at 213-14 (O'Connor, J., dissenting).
138. Id. at 214.
139. Id. at 216 (quoting Brief of the National Conference of State Legislators et al. as Amici Curiae in Support of Petitioner at 19-20, Dole, 483 U.S. 203 (No. 86-260)).
140. Id. at 215.
141. 29 U.S.C. § 794 (2006).
142. See Bradley v. Ark. Dep't of Educ., 189 F.3d 745, 757 (8th Cir. 1999) ("Arkansas is forced to renounce all federal funding, including funding wholly unrelated to the RA, if it does not want to comply with § 504."), rev'd en banc sub nom. Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000).
143. see also Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1171-75 (D.C. Cir. 2004) (Sentelle, J., dissenting) (arguing that Section 504 violates the nexus requirement).
144. See supra note 66.
145. Conservative judges are happy to look for over- and underinclusiveness in cases involving so-called heightened scrutiny.
146. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2755-58 (2007) (plurality opinion). But in those cases they do not look for tightness of means-ends fit for its own sake; rather, they do so either as a way to ensure that especially protected interests are not lightly infringed or as a way to smoke out illegitimate intent.
147. See Charles Fried, Types, 14 Const. Comment. 55, 62-63 (1997). But the conservative Justices have not shown any especial desire to impose a general requirement of tight means-ends fit. For a unanimous example of the Court's deferential approach that highlights the difficulties of a general requirement of tight means-ends fit.
148. see Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103, 108 (2003).
149. See Baker, supra note 92, at 750-51.
150. See, e.g., Margo Schlanger, Second-Best Damage Action Deterrence, 55 Depaul L. Rev. 517, 524-35 (2006) (showing that tort liability can alter defendants' behavior without reducing risk and harm of accidents).
151. Gary T. Schwartz, Reality in the Economic Analysis of Tort Law: Does Tort Law Really Deter?, 42 Ucla L. Rev. 377, 390, 443, 390-422 (1994) (reviewing the literature concerning whether "tort law, in its various branches, achieves anything by way of deterrence"and concluding that "while not as effective as economic models suggest, [tort law] may still be somewhat successful in achieving its stated deterrence goals").
152. Yackle, supra note 64, at 779.
153. Sullivan, supra note 87, at 1474.
154. United States v. Butler, 297 U.S. 1 (1936).
155. Id. at 65-66.
156. See South Dakota v. Dole, 483 U.S. 203, 206-07 (1987). In his major article on the spending power, Professor David Engdahl argues that "this kind of 'germaneness' requirement assumes the anti-Hamiltonian premise that spending is permissible only for certain specified ends."Engdahl, supra note 34, at 57-58. I do not think that is quite true. As the discussion in the text shows, the nexus requirement does not impose any meaningful constraint once one accepts the Hamiltonian view adopted in Butler and Dole, but the requirement does not presuppose the rejection of that view.
157. Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 Sup. Ct. Rev. 71, 105. The Court has applied a form of nexus analysis to hold that the National Labor Relations Act (NLRA) preempted a California law that barred recipients of state funds from using those funds to assist or deter union organizing.
158. See Chamber of Commerce v. Brown, 128 S. Ct. 2408, 2414-16 (2008). But unlike in the Spending Clause context, in which Congress can generally spend for any purpose it likes, the NLRA limits state conduct-including spending-that the Court finds to have too great an effect on areas the statute leaves to the "free play of economic forces."Id. at 2412 (quoting Machinists v. Wis. Employment Relations Comm'n, 427 U.S. 132, 140 (1976)). Although Chamber of Commerce could provide a template for stringent nexus review under the Spending Clause, the significant difference in context-and the fact that the Court has never invalidated a federal spending statute for having an insufficient nexus-suggests that the Justices might well see things differently under the Spending Clause.
159. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 335 (1990) ("The complex compromises endemic in the political process suggest that legislation is frequently a congeries of different and sometimes conflicting purposes. To be enacted, a statute must be acceptable to a range of interest groups, each of which will have their own reasons for supporting, or at least not opposing, the statute."). For judicial recognition of this point, see Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103, 108 (2003).
160. See John Ferejohn, Logrolling in an Institutional Context: A Case Study of Food Stamp Legislation, in Congress and Policy Change 223, 231-45 (Gerald C. Wright, Jr., Leroy N. Rieselbach & Lawrence C. Dodd eds., 1986) (explaining that urban Democrats voted for farm legislation in exchange for Republican support for food stamp legislation).
161. David A. Super, The Quiet "Welfare"Revolution: Resurrecting the Food Stamp Program in the Wake of the 1996 Welfare Law, 79 N.Y.U. L. Rev. 1271, 1383 n.480 (2004).
162. Dole, 483 U.S. at 207.
163. See 29 U.S.C. § 794(b) (2006).
164. Koslow v. Pennsylvania, 302 F.3d 161, 175-76 (3d Cir. 2002). One scholarly treatment suggests that Section 504 violates the nexus requirement. See Mitchell N. Berman, R. Anthony Reese & Ernest A. Young, State Accountability for Violations of Intellectual Property Rights: How to "Fix"Florida Prepaid (and How Not To), 79 Tex. L. Rev. 1037, 1137-42 (2001). But Professors Berman, Reese, and Young do not explain why encouraging the state not to discriminate cannot be a valid purpose of federal spending legislation. The dissenting appellate opinions that have argued that Section 504 violates the nexus requirement have the same problem. See Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1172 (D.C. Cir. 2004) (Sentelle, J., dissenting) (asserting that "[t]he purpose of the federal funds WMATA receives is to subsidize the mass-transit services WMATA provides"without explaining why federal funds cannot have multiple purposes).
165. Jim C. v. United States, 235 F.3d 1079, 1084 (8th Cir. 2000) (en banc) (Bowman, J., dissenting) ("Here, the condition (waiver of Eleventh Amendment immunity with respect to Rehabilitation Act claims) bears no direct relationship (indeed, not even a discernible relationship) to the purpose of most federal grants to the states for education. That purpose, broadly stated, is to improve the overall quality of education.").
166. Engdahl, supra note 34, at 56.
167. Dole, 483 U.S. at 216 (O'Connor, J., dissenting) (quoting Brief of the National Conference of State Legislators et al. as Amici Curiae in Support of Petitioner, supra note 95, at 19-20).
168. Engdahl, supra note 34, at 57.
169. The statute the Court upheld in Sabri-18 U.S.C. § 666-is an example of the point. See supra text accompanying notes 16-18.
170. See Dole, 483 U.S. at 217 (O'Connor, J., dissenting).
171. Oklahoma v. U.S. Civil Serv. Comm'n, 330 U.S. 127, 143 (1947).
172. Dole, 483 U.S. at 217 (O'Connor, J., dissenting).
173. Oklahoma, 330 U.S. at 143.
174. 29 U.S.C. § 794 (2006).
175. I don't think it particularly matters for these purposes that Section 504's requirements extend to "all of the operations of"a government entity, "any part of which"receives federal funding. Id. § 794(b). Congress might legitimately think that proven discrimination in one part of a federally funded entity is evidence of discrimination in other parts that more directly receive federal funds. Or Congress may simply understand that "[m]oney is fungible,"Sabri v. United States, 541 U.S. 600, 606 (2004), so that federal funding of one part of a governmental entity will end up financing (and perhaps subsidizing) discrimination in another part of that entity, see id. On the fungibility of money in state budgets, see David Super, Rethinking Fiscal Federalism, 118 Harv. L. Rev. 2544, 2561 (2005).
176. Dole, 483 U.S. at 215 (O'Connor, J., dissenting).
177. Engdahl, supra note 34, at 62. In a footnote to an article published over a dozen years after his major spending power article, Professor Engdahl seems to have recognized the point (without acknowledging his prior position). See David E. Engdahl, The Contract Thesis of the Federal Spending Power, 52 S.D. L. Rev. 496, 496 n.3 (2007) ("[A]dding any condition(s) to a grant adds ipso facto to the purpose(s) of that grant, so that 'unrelated' conditions are logically impossible.")
178. Baker & Berman, supra note 3, at 468-69 (quoting Kansas v. United States, 214 F.3d 1196, 1202 (10th Cir. 2000)).
179. Va. Dep't of Educ. v. Riley, 106 F.3d 559 (4th Cir. 1997) (en banc) (per curiam).
180. Id. at 569 (quoting Va. Dep't of Educ. v. Riley, 86 F.3d 1337, 1355 (4th Cir. 1996) (Luttig, J., dissenting)). The majority en banc opinion adopted in whole and reprinted Judge Luttig's dissenting panel opinion.
181. See id. (reserving the question).
182. My discussion in this paragraph glosses over lots of nuances in the literature, but those nuances do not detract from the basic point. For illuminating discussions of coercion, see generally Robert Nozick, Coercion, in Philosophy, Science, and Method: Essays in Honor of Ernest Nagel 440, 440-72 (Sidney Morgenbesser, Patrick Suppes & Morton White eds., 1969).
183. Alan Wertheimer, Coercion (1987). For good discussions of the problems, see generally Louis Michael Seidman & Mark v. Tushnet, Remnants of Belief: Contemporary Constitutional Issues 77-90 (1996).
184. Larry Alexander, Understanding Constitutional Rights in a World of Optional Baselines, 26 San Diego L. Rev. 175 (1989).
185. Sullivan, supra note 87, at 1442-54.
186. Sullivan, supra note 87, at 1450.
187. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686-87 (1999).
188. Sullivan, supra note 87, at 1450. My point is not to endorse the notion of the "Negative Constitution,"Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271, 2273 (1990) (criticizing the assumption underlying a "Negative Constitution"and proposing that scholars discard the rhetoric of negative rights), but merely to observe that it is a notion to which conservative judges strongly adhere.
189. For a good instantiation of Epstein's effort, see generally Richard Epstein, bargaining with the State (1993). For Kreimer's effort, see Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. Pa. L. Rev. 1293, 1352-78 (1984). For discussions of the problems with these efforts, see Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo. L.J. 1, 13-14 (2001).
190. Louis Michael Seidman, Essay, Reflections on Context and the Constitution, 73 Minn. L. Rev. 73, 78-80 (1988); sources cited supra note 132. Indeed, even Professor Kreimer himself appears to acknowledge that his approach has only limited traction-if that-in practice. See Adler & Kreimer, supra note 109, at 91-92.
191. Baker & Berman, supra note 3, at 521.
192. Baker, supra note 3, at 1916 & n.16.
193. Id. at 1935.
194. Id. at 1937.
195. See id. at 1942.
196. See id. at 1947-48. Professor Baker uses this example as part of an effort to show that liberals, as well as conservatives, have something to fear from broad conditional spending authority-a point that Baker has frequently made in her work on federalism. See, e.g., Lynn A. Baker, Should Liberals Fear Federalism?, 70 U. Cin. L. Rev. 433, 442 (2002) (arguing that liberals should favor the judicial enforcement of states' rights). But it all depends on your risk tolerance. To be sure, conditional spending could be used to support conservative legislation-which is one reason why, I explain in Section B, conservative Justices are unlikely to impose significant limitations on that tool. But a liberal who believes in activist government might reasonably conclude that the risk of some bad legislation is worth it for the prospect of enacting some good legislation. It is not hard to see why a liberal might think that Medicaid is worth the Solomon Amendment, for example.
197. Baker, supra note 3, at 1948.
198. Id. at 1967-68.
199. Id. at 1969.
200. Id. at 1970.
201. Id. at 1937.
202. Sullivan, supra note 87, at 1450; see also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686-87 (1999) ("Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts.").
203. See Galle, supra note 34, at 190 & n.221 (noting that federal taxation, by avoiding states' collective action problems, "is able to tap a large base of revenue unavailable to the states,"that "Professor Baker offers no evidence that federal tax levels, either now or at any time in history, have been so high that they have exceeded this base,"and that "the conventional wisdom is that state and federal tax levels rise and fall together"); Super, supra note 125, at 2561 ("[B]ecause states have broad revenue-raising powers on their own and large, diversified budgets, a failure to provide fiscal assistance-a disinterest in federalism-does not necessarily prevent states from acting unilaterally. Because a state can raise another tax when one is struck down or can cut another program when federal mandates make one more expensive, federal policies do not directly constrain the broader scope of states' policymaking."). But cf. id. at 2593 ("Congress and the Court have been weakening states' fiscal positions by hobbling states' revenue-raising capacities in ways difficult to reconcile with both institutions' strong pro-state rhetoric . . . .").
204. See Galle, supra note 34, at 186-87 ("[M]inority states will recognize that they can obtain holdout costs from the majority."). For an excellent discussion of the point, see Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty"Doesn't, 96 Mich. L. Rev. 813, 871-91 (1998).
205. See, e.g., Baker, supra note 3, at 1935 ("[F]ederal regulatory spending is especially likely to reduce aggregate social welfare by reducing the diversity among the states in the package of taxes and services, including state constitutional rights and other laws, that each offers to its residents and potential residents."). I follow, without passing judgment on, Professor Baker's treatment of states as unitary actors with relatively stable sets of preferences.
206. See Super, supra note 125, at 2583-84. Professor Super argues, In effect, then, disallowing federal conditions on grants to states would be tantamount to denying states the ability to contract to perform services for the federal government. Whatever problems may attend the current approach, . . . treating states as legal incompetents without capacity to enter into binding contracts seems extreme and, indeed, quite insulting.
207. Berman, supra note 136, at 17
208. Id. at 35.
209. Id. at 37.
210. Id. at 55.
211. Id. at 57.
212. See id. at 36-42, 55-56.
213. Thus, Professor Berman says there is a possibility that a law conditioning federal education funds on a state's enactment of a law prohibiting guns around schools might not be coercive if Congress's real purpose was not "to punish or deter, but rather to not waste federal money"(as it might be if "fear of gun violence had a measurable, deleterious effect on the ability of students to learn"). Id. at 55-56. He argues that "[i]n all likelihood, an argument along these lines would not, and should not, be credited,"id. at 56, but how is a court supposed to tell? And why should it make a difference what Congress's real purpose is (whatever that means)? Berman also argues that federal matching grants are not coercive, even though withholding funds directed at certain purposes from states that fail to pitch in their own funds seems like a "penalty"based on his definition: "[I]f a state refuses, then whatever national interests explain Congress's willingness to extend the offer are still better served by the contribution than by the withholding of federal dollars."Id. at 57. He explains that even if the federal government would actually prefer half the loaf to its next most attractive alternative, successful realization of even that partial good is likely to require some action by state actors, and Congress might reasonably worry that state effort would prove lackadaisical . . . if the state is not itself financially committed. Id. at 58. But why doesn't an analogous argument mean that the federal funding condition in Dole was constitutional? Successful realization of the goal of building safe highways is likely to require action by state actors, and Congress might reasonably worry that a state that does not raise its drinking age to the national standard is not serious about highway safety. And Berman endorses what looks like a totally ad hoc exception to his analysis for antidiscrimination laws like Section 504: those laws, he says, might be justified by the federal government's "interests in not exacerbating inequality."Id. But that is an interest tied to the condition, not to the underlying grant of funds. By parity of analysis, Congress should be able to justify the condition in Dole by pointing to its strong interest in not exacerbating teenage drinking.
214. Baker & Berman, supra note 3, at 539 ("Whether an adequately administrable judicial doctrine can be crafted to satisfactorily (albeit imperfectly) implement the understandings of coercion and penalty . . . are important questions that the court would have to confront . . . .").
215. See United States v. Morrison, 529 U.S. 598, 610-11 (2000); United States v. Lopez, 514 U.S. 549, 559-61 (1995). For criticisms of the economic-noneconomic distinction on analytic and normative grounds, see Morrison, 529 U.S. at 643-45 (Souter, J., dissenting); id. at 656-61 (Breyer, J., dissenting); Lopez, 514 U.S. at 608 (Souter, J., dissenting).
216. See Baker & Berman, supra note 3, at 461.
217. Here, I reach conclusions similar to Professor Neil Siegel's. See Neil S. Siegel, Dole's Future: A Strategic Analysis, 16 Supreme Ct. Econ. Rev. 165, 169-89 (2008). But our analyses, although compatible, differ. Whereas Siegel uses game-theory tools and casual observation of the Justices' decisions to support his conclusions, I look to the political stakes in conditional spending cases. Those political stakes, I suggest, underlie the behavior Siegel models and observes. Professor Simon Lazarus reaches similar conclusions based on his reading of the Justice Roberts confirmation hearings. See Lazarus, supra note 23, at 30-31.
218. See Young, supra note 14, at 37-38.
219. See, e.g., Baker, supra note 3, at 1920 ("[I]f the Spending Clause is simultaneously interpreted to permit Congress to seek otherwise forbidden regulatory aims indirectly through a conditional offer of federal funds to the states, the notion of 'a federal government of enumerated powers' will have no meaning.").
220. See Galle, supra note 34, at 169.
221. See supra note 144.
222. For examples of a cases in which a conservative court has rejected liberal unconstitutional conditions claims that take this form, see Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 126 S. Ct. 1297, 1313 (2006) (holding that a statute withholding federal funds from universities that did not give military recruiters access to students did not violate the First Amendment); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 537 (2001) (holding that a statute prohibiting recipients of federal legal services funding from challenging welfare laws violated the First Amendment); Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 572-73 (1998) (concluding that a statute requiring that "general standards of decency and respect for the diverse beliefs and values of the American public"be considered in the distribution of federal arts funding "neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles"); Rust v. Sullivan, 500 U.S. 173, 203 (1991) (holding that regulations that prohibited federally funded family-planning clinics from abortion counseling did not violate the First or Fifth Amendments). For a sense of the conservative political uses to which conditional funding of private entities can be put, see David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech, 67 N.Y.U. L. Rev. 675, 676-77 (1992).
223. See, e.g., Rust, 500 U.S. at 197-98 (applying such a test in an individual's First Amendment "unconstitutional conditions"challenge).
224. See Forum for Academic & Institutional Rights, Inc., 126 S. Ct. at 1313.
225. See Va. Dep't of Educ. v. Riley, 106 F.3d 559, 560 (4th Cir. 1997) (en banc) (per curiam).
226. See supra note 58 and accompanying text.
227. See Peter Westen & James Mangiafico, The Criminal Defense of Duress: A Justification, Not an Excuse-And Why It Matters, 6 BUFF. Crim. L. Rev. 833, 862 (2003) ("Liberals . . . wish to expand the defense to encompass responses to 'situational duress,' that is, to natural threats that persons of reasonable firmness would be unable to resist.").
228. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 278 (1973) (Marshall, J., dissenting).
229. See Eric Talley, Precedential Cascades: An Appraisal, 73 S. Cal. L. Rev. 87, 118 (1999) (describing the role of liberal judges in spreading the unconscionability doctrine).
230. Professor Mark Kelman aptly notes that "[i]t is generally easy, in
231. For one account of how this process might work in a private-law context, compare this to Duncan Kennedy, The Political Stakes in "Merely Technical"Issues of Contract Law, 10 Eur. Rev. Private L. 7, 13-18, 25 (2001).
232. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
233. Engdahl, supra note 127, at 498-99 (emphasis omitted) (footnotes omitted).
234. Id. at 500 (emphasis omitted).
235. See Engdahl, supra note 34, at 18-24 ("Congress thus may pursue policy objects regarding extraneous matters, those policies remain extraneous to the enumerated powers; therefore, those policies cannot invoke the Necessary and Proper Clause, which avails only for effectuating ends within the enumerated powers."). 186. See id. at 20-24, 62-78 ("[E]xtraneous objectives being promoted by taxing, by spending, or by manipulating any other enumerated power may freely be frustrated or countermanded by states.").
236. Id. at 104 (quoting 42 U.S.C. § 1983 (2000)).
237. Ex parte Young, 209 U.S. 123 (1908).
238. Green v. Mansour, 474 U.S. 64, 68 (1985).
239. See Engdahl, supra note 127, at 534 n.266 (citing favorably the district court's decision in Westside Mothers v. Haveman, 133 F. Supp. 2d 549, 561-89 (E.D. Mich. 2001), rev'd, 289 F.3d 852 (6th Cir. 2002), which held that spending conditions could not be enforced under § 1983 or Ex parte Young).
240. Engdahl, supra note 127, at 527.
241. Blessing v. Freestone, 520 U.S. 329 (1997).
242. Id. at 333.
243. Id. at 349 (Scalia, J., concurring).
244. Id. at 350.
245. Id. at 349.
246. See id. at 349-50.
247. Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 683 (2003) (Thomas, J., concurring in the judgment).
248. Blessing, 520 U.S. at 350 (Scalia, J., concurring).
249. Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644 (2003).
250. See id. at 683 (Thomas, J., concurring in the judgment) (emphasis added) (citation omitted). Under this Court's precedents, private parties may employ 42 U.S.C. § 1983 or an implied private right of action only if they demonstrate an "unambiguously conferred right."Petitioner quite obviously cannot satisfy this requirement and therefore arguably is not entitled to bring a pre-emption lawsuit as a third-party beneficiary to the Medicaid contract. . . . [W]ere the issue to be raised, I would give careful consideration to whether Spending Clause legislation can be enforced by third parties in the absence of a private right of action. Id.
251. Barnes v. Gorman, 536 U.S. 181 (2002).
252. Id. at 188-89 n.2. Justices Kennedy and Thomas joined Justice Scalia's opinion for the Court.
253. Frew v. Hawkins, 540 U.S. 431 (2004).
254. Id. at 436-37.
255. Id. at 439.
256. Sabri v. United States, 541 U.S. 600 (2004).
257. Id. at 602.
258. Id. at 605.
259. Id. at 614 (Thomas, J., concurring in the judgment).
260. Id. at 611 (emphasis added).
261. Westside Mothers v. Haveman, 133 F. Supp. 2d 549, 587-88 (E.D. Mich. 2001) (holding that state obligations under the Medicaid statute are not "law"for purposes of the Supremacy Clause and may not be enforced under § 1983 or Ex parte Young), rev'd, 289 F.3d 852 (6th Cir. 2002).
262. Westside Mothers, 289 F.3d at 860, 862-63.
263. See, e.g., Frazar v. Hawkins, 376 F.3d 444, 446 (5th Cir. 2004) (noting that the panel had "rejected"the "so-called Westside Mothers arguments"in a previous appeal); Mo. Child Care Ass'n v. Cross, 294 F.3d 1034, 1040 (8th Cir. 2002) ("[W]e have found no other decision in which any federal court of appeals has held that legislation enacted pursuant to Congress's Spending Clause powers is not part of the supreme law of the land. We agree with the Sixth Circuit's reasoned rejection of this argument and likewise reject the argument here."(citation omitted)); Antrican v. Odom, 290 F.3d 178, 188 (4th Cir. 2002) (rejecting an argument in line with the district court's ruling in Westside Mothers as a "novel position"that was "at odds with existing, binding precedent").
264. See Engdahl, supra note 34, at 62-78.
265. Blum v. Bacon, 457 U.S. 132, 138 (1982).
266. Carleson v. Remillard, 406 U.S. 598, 604 (1972).
267. Townsend v. Swank, 404 U.S. 282, 286 (1971).
268. See Bennett v. Arkansas, 485 U.S. 395, 396 (1988) (per curiam) (holding that an Arkansas statute, which permits the state to seize prisoners' property to defray the costs of their incarceration, is preempted to the extent that it is applied to seize property received as Social Security or benefits).
269. see also Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417 (1973) (holding that the Social Security Act bars the State of New Jersey from attaching Social Security benefits as reimbursements for state welfare payments).
270. Sabri v. United States, 541 U.S. 600, 605 (2004).
271. See Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 509-10 (1990) (Boren Amendment to Medicaid Act); Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 432 (1987) (Brooke Amendment to the Housing Act of 1937); Maine v. Thiboutot, 448 U.S. 1, 4 (1980) (Aid to Families with Dependent Children Provisions of the Social Security Act).
272. See Erwin Chemerinsky, Ensuring the Supremacy of Federal Law: Why the District Court was Wrong in Westside Mothers v. Haveman, 12 Health Matrix 139, 145 (2002) ("Nothing in the Constitution's language, or any Supreme Court precedent, draws a distinction among federal laws, denying some status as the supreme law of the land.").
273. Id. at 146.
274. See Engdahl, supra note 127, at 498-500.
275. U.S. Const. art. I, § 8, cl. 18.
276. See Engdahl, supra note 34, at 18.
277. U.S. Const. art. VI, § 1, cl. 2.
278. See Engdahl, supra note 34, at 20.
279. See id. at 49-50.
280. U.S. Const. art. I, § 8 ("Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States.").
281. see, e. g. South Dakota v. Dole, 483 U.S. 203, 206-07 (1987) (citing cases).
282. see also Galle, supra note 34, at 168 (making this point about Professor Engdahl's argument).
283. See Engdahl, supra note 34, at 53 ("It is true that even Hamilton attributed the spending power to the Taxing Clause.").
284. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981).
285. Id. at 17 (citations omitted).
286. Id. (citations omitted).
287. Id. at 13 (quoting 42 U.S.C. § 6010 (1976)).
288. Id. at 24-25.
289. Id. at 25.
290. See Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 Sup. Ct. Rev. 125, 189 (treating the Pennhurst-derived notice principle as "just a clear statement rule, that functions here just as any clear statement rule").
291. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
292. Id. at 276.
293. Id. at 280 (quoting Pennhurst, 451 U.S. at 28).
294. Id. (quoting Pennhurst, 451 U.S. at 17, 28).
295. Id. at 287-88 (emphasis omitted) (quoting 20 U.S.C. § 1232g(b)(1) (2000)).
296. Barnes v. Gorman, 536 U.S. 181, 185-88 (2002).
297. Id. at 187.
298. See id. at 187-88.
299. Id. at 188.
300. See supra notes 28-31 and accompanying text.
301. 20 U.S.C. § 1415(i)(3)(B) (2006).
302. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455, 2459-61 (2006).
303. Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98 (2d Cir. 2001).
304. Id. at 104.
305. See 29 U.S.C. § 794(a) (2006).
306. See id. § 794a; 42 U.S.C. § 2000d-7(a)(1) (2000).
307. Garcia, 280 F.3d at 113.
308. Id. at 114.
309. Americans with Disabilities Act of 1990, Pub. L. 101-336, § 205(a), 104 Stat. 327, 338 (codified at 42 U.S.C. § 12131 (2000)).
310. See id. §§ 12131(1), 12134(b), 12201(a).
311. Id. § 12202.
312. See Bd. of Trs. v. Garrett, 531 U.S. 356, 368-74 (2001).
313. Garcia, 280 F.3d at 114 (citation omitted) (citing Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999)).
314. The case was Reickenbacker v. Foster, 274 F.3d 974, 976 (5th Cir. 2001).
315. Pace v. Bogalusa City Sch. Bd., 325 F.3d 609, 616-17 (5th Cir. 2003), rev'd en banc, 403 F.3d 272 (5th Cir. 2005).
316. See Pace, 403 F.3d at 277.
317. See Constantine v. Rectors & Visitors, 411 F.3d 474, 495 (4th Cir. 2005).
318. Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1166 (D.C. Cir. 2004).
319. Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 129-30 (1st Cir. 2003).
320. Doe v. Nebraska, 345 F.3d 593, 601-04 (8th Cir. 2003).
321. A.W. v. Jersey City Pub. Sch., 341 F.3d 234, 250-54 (3d Cir. 2003).
322. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292-93 (11th Cir. 2003) (per curiam).
323. Va. Dep't of Educ. v. Riley, 106 F.3d 559, 560 (4th Cir. 1997) (en banc) (per curiam).
324. Id. at 563 (quoting 20 U.S.C. § 1412(1)).
325. Id. at 567. The opinion refers to "the majority"because the Fourth Circuit sitting en banc simply adopted Judge Luttig's panel dissent as its opinion on this point. Id. at 560-61.
326. Id. at 567-68.
327. Id. at 567-68.
328. Cf. Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) ("[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth."(quoting Sedima v. Imrex Co., 473 U.S. 479, 499 (1985))).
329. Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983).
330. Id. at 586 (opinion of White, J., announcing the judgment of the Court).
331. Id. at 598-99.
332. Bennett v. Ky. Dep't of Educ., 470 U.S. 656 (1985).
333. Id. at 666.
334. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
335. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).
336. Davis, 526 U.S. at 650.
337. Id. at 651 (citation omitted) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).
338. Id. at 675 (Kennedy, J., dissenting).
339. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).
340. Id. at 183.
341. Id. at 190-92 (Thomas, J., dissenting).
342. Id. at 169 (majority opinion); Davis, 526 U.S. at 632.
343. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455, 2457 (2006).
344. See id. at 2459-63 (holding that the Spending Clause requires Congress to give clear notice to the states when attaching conditions to the acceptance of federal funds).
345. For a similar assessment of the effects of Justice O'Connor's replacement by Justice Alito, see Engdahl, supra note 127, at 523-26
346. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992).
347. Id. at 74-75 (citation omitted).
348. Consol. Rail Corp. v. Darrone, 465 U.S. 624 (1984).
349. See id. at 630 & n.9.
350. Franklin, 503 U.S. at 75.
351. Id. at 74.
352. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287-88 (1998).
353. Id. at 277-79.
354. Franklin, 503 U.S. at 75-76.
355. Gebser, 524 U.S. at 282.
356. Id. at 287.
357. Id. at 287-88 (alteration in original) (quoting Franklin, 503 U.S. at 74).
358. Id. at 290.
359. Pennhurst State Sch. Hosp., 451 U.S. 1, 13 (1981) (quoting 42 U.S.C. § 6010).
360. See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560, 576 (1979).
361. See, e.g., Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989) (relying on Pennhurst as setting forth part of the standard for determining whether the National Labor Relations Act-a Commerce Clause statute-is enforceable under 42 U.S.C. § 1983).
362. Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002).
363. Indeed, the bulk of Gonzaga's analysis proceeds without any discussion of the spending power. See id. at 283-87.
364. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455, 2464-65 (2006) (Ginsburg, J., concurring in part and concurring in the judgment) (noting that attorneys' fee-shifting provisions do not address expert witness fees even absent any special spending-power considerations unless Congress makes that clear in the statute).
365. Barnes v. Gorman, 536 U.S. 181, 191-93 (2002) (Stevens, J., concurring in the judgment) (noting that governmental entities "are not subject to punitive damages"even absent any special spending-power considerations unless there is "clear congressional intent to the contrary").
366. Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
367. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 631 (1992) (explaining that clear-statement rules "can protect important constitutional values against accidental or undeliberated infringement by requiring Congress to address those values specifically and directly").
368. See 11 Williston on contracts § 32:12, at 471-82 (4th ed. 1990 & Supp. 2008). Professor Peter Smith calls these two aspects of the notice rule (federalism and contra proferentem, respectively) the "accountability model,"Smith, supra note 34, at 1189, and the "state choice model,"id. at 1190; he contends that the latter should predominate, see id. passim.
369. In this respect I disagree with Professor Brian Galle, who has written the most thorough critique of the Spending Clause notice doctrine to date. See Galle, supra note 34 passim. Galle writes in terms that would condemn all federalism-based clear-statement rules, id. at 199-200, and he entirely ignores the contract-law doctrine of contra proferentem. (Galle makes clear that he rejects federalism-based clear-statement rules in Galle, supra note 31, at 52-53, 72-73.)
370. See Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98, 113-14 (2d Cir. 2001).
371. Will, 491 U.S. at 65 (quoting Scanlon, 473 U.S. at 242).
372. It makes no difference that what the state is waiving is a constitutional right (the right to sovereign immunity). Even in the context of individual rights, the Court has held, for example, that "[t]he Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege."Colorado v. Spring, 479 U.S. 564, 574 (1987).
373. See 11 Williston on Contracts, supra note 314, § 32:12, at 480.
374. The Restatement of Contracts, for example, states that a unilateral mistake will make a contract voidable only if the mistaken party exercised sufficient diligence and either "the effect of the mistake is such that enforcement of the contract would be unconscionable,"Restatement (Second) of Contracts § 153 (1979), or "the other party had reason to know of the mistake or his fault caused the mistake,"id. § 154 app. (quoting Albert Elia Bldg. Co. v. Am. Sterilizer Co., 622 F.2d 655, 656 (2d Cir. 1980)).
375. Supplemental Brief for Defendants-Appellees at 11-14, Garcia, 280 F.3d 98 (No. 00-9223), 2001 WL 34108906.
376. There is another problem with Garcia. Under standard contract law the proper remedy for a unilateral mistake would not be to allow the mistaken party to keep the benefits it obtained, while excusing it of its obligations, under the contract. See Restatement (Second) of Contracts § 158. But that is precisely what the Garcia court permitted New York to do. See Garcia, 280 F.3d at 114-15.
377. See Va. Dep't of Educ. v. Riley, 106 F.3d 559, 566-68 (4th Cir. 1997) (en banc) (per curiam).
378. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991).
379. See Riley, 106 F.3d at 560.
380. Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985)). As noted above, see supra note 314 and accompanying text, contra proferentem principles also require genuine ambiguity.
381. Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 598 (1983) (opinion of White, J., announcing the judgment of the Court); see also Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 675 (1999) (Kennedy, J., dissenting) (stating that the majority's "multifactored balancing test is a far cry from the clarity we demand of Spending Clause legislation").
382. See Gregory, 501 U.S. at 460-61 (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989)).
383. Yeskey, 524 U.S. at 208-09 (quoting Gregory, 501 U.S. at 460-61). I therefore agree with Professor Peter Smith that Congress should have no obligation to legislate with extraordinary specificity in the conditional spending context, though (unlike him) I believe that both the accountability and state choice models support that conclusion. See Smith, supra note 34, at 1210-12.
384. See Galle, supra note 34, at 170-74.
385. See, e.g., Interstate Gen. Gov't Contractors, Inc. v. Stone, 980 F.2d 1433, 1434-35 (Fed. Cir. 1992).
386. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284-89 (1998).
387. See id. at 290 (noting that Title IX's "express enforcement scheme hinges its most severe sanction on notice and unsuccessful efforts to obtain compliance"and stating that "we cannot attribute to Congress the intention to have implied an enforcement scheme that allows imposition of greater liability without comparable conditions").
388. Gebser may well have been such a case, as Justice Stevens forcefully argued in his dissent. See id. at 296-304 (Stevens, J., dissenting).
389. Professor Simon Lazarus provides a thorough analysis of this aspect of the Justice.
390. It is no accident that the four most significant unconstitutional conditions cases involving Spending Clause legislation in the past two decades, Rust, Velazquez, Finley, and FAIR, have involved situations in which recipients sued to challenge the withholding of funding. See supra note 172.
391. See, e.g., Stephen c. Halpern, On the Limits of the Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act 294-95 (1995) (noting reluctance of the administrations of both political parties to use the fund-termination sanction). To be sure, there are occasions in which the federal government decides to withhold funds. (Virginia Department of Education v. Riley was one.) But the point is that those occasions are an exceedingly tiny proportion of the cases in which funding recipients violate these statutes.
392. As the Court showed when it upheld the Partial-Birth Abortion Ban Act in an opinion that was flatly inconsistent with-but did not formally overrule-its decision in Stenberg v. Carhart, 530 U.S. 914 (2000), the Court is certainly capable of effectively but not formally overruling prior precedent.
393. see Gonzales v. Carhart, 127 S. Ct. 1610, 1635-38 (2007); see also id. at 1640-53 (Ginsburg, J., dissenting) (arguing that the Court's decision was inconsistent with Stenberg and other precedent).