The Spending Power

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. BDG says:

    The last option is probably the one I would pick. Although I am one of those who thinks that coercion arguments are unpersuasive (e.g., http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963915 and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=519662), even I would not take the view you seem to attribute to the anti-coercion view in the 1st & 2d sentences of your second paragraph. The spending power does not get congress around independent bars to exercises of its power, and the power of the state to structure its own government is, I’d agree, a core 10th-amendment limit (as opposed to some kind of free-floating state autonomy). but this limit, in turn, can be overcome when congress is enforcing the 14th am. (and perhaps, as you suggest, the guarantee clause), which is why I think the Court got the ADEA case wrong.

  2. Ian Millhiser says:

    This doesn’t strike me as a conditional grant at all, but rather as an unconditional grant with an independent trigger. The state doesn’t have any control over whether its governor resigns — that decision rests entirely within the discretion of the governor him or herself. In the same way that Congress can constitutionally design unemployment benefits to automatically trigger when the unemployment rate reaches a certain level, I don’t see any reason why they couldn’t design another program to automatically trigger when a different external event occurs, such as a particular individual quitting their job.

    A more difficult question, however, is whether Congress could constitutionally require a state to take action to remove its governor, such as through impeachment and conviction. There may be an argument that such a law would violate the Guarantee Clause, but I don’t really see what the Spending Clause problem would be (beyond the unconstitutional conditions doctrine).

  3. Joe says:

    Well, whoever has the money, has the power, I guess. If the state is willing to surrender its rights to govern itself in order to receive financial aid, then what are we to do about it?