Sunday, November 23, 2008

The Sunday Reader: Bagenstos on the Spending Clause

Professor Sam Bagenstos (Wash. U., visiting at Michigan) recently posted Spending Clause Litigation in the Roberts Court on ssrn.  (The article will come out in the Duke Law Journal in December.)  Bagenstos--who has written several very good articles on civil rights, with a focus on disabilities--produced an excellent review, a useful typology, and a rich analysis that draws on both judicial politics and constitutional law on the Spending Clause.  I highly recommend this piece.

Bagenstos's core thesis is that the Roberts Court is likely to limit Congressional Spending Clause authority indirectly--"through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes"--and not, as some expected, directly.  Bagenstos:

To the extent that the Roberts Court has a conservative agenda, and the liberal welfare and civil-rights state continues to be built on conditional spending legislation, the Court will have a strong incentive to limit that legislation.  But the Court is not likely to do so in the way some hoped and some feared the Rehnquist Court would--by imposing direct limitations on the kinds of legislation Congress has the power to pass under the Spending Clause.  Rather, the Court is likely to act indirectly--through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes.  Those doctrines have a strong pedigree in existing law, and they are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power.

Bagenstos thus argues that "the paradigm case for the Roberts Court's restriction of the spending power is not likely to be United States v. Butler," but rather the more recent Arlington Central School District v. Murphy (holding that the IDEA, as Spending Clause legislation, could not impose obligations on states unless Congress provided "clear notice.")

To get there, Bagenstos first argues that direct limitations on the Spending Clause--the "general welfare" limitation, the "nexus" limitation, and the "coercion" limitation--have no real teeth, and that they are unlikely to limit the Spending Clause under the Roberts Court.

He next argues that indirect limits will resonate much more with a conservative Roberts Court.  Here Bagenstos distinguishes between a "strong contract theory"--"that conditions on federal spending are not 'law,' but merely contractual obligations--and "weak contract theory"--"the requirement that federal spending legislation give states clear notice of the conditions"--and argues that "the Court is nearly certain to continue to implement the weak contract theory, and there is a chance (though not a big one) that it will adopt the strong contract theory."  Bagenstos's argument here is both political and doctrinal, thus offering a rich analysis and prediction on the near future of the Spending Clause.

You can read this piece for a good predictive constitutional argument with imortant policy implications.  Or you can read this piece for its analysis of the judicial politics of the Roberts Court and the Spending Clause.  Or you can simply read it for a useful typology and excellent review of Spending Clause doctrine and scholarship.  Whatever your interest, I highly recommend it.

SDS

http://lawprofessors.typepad.com/conlaw/2008/11/bagenstos-on-th.html

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