The Anti-Leveraging Principle and the Spending Clause after NFIB

(NFIB), which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks "the first time ever" that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitu-tionality of a broad swath offederal spending legislation. Notwithstanding some of the Court's language, this Article contends that the case is not best read as rendering federal spending conditions unconstitutional simply because they are attached to large amounts offederal money, change the terms of participation in entrenched cooperative programs, or tie together separate programs into a package deal. Rather Chief Justice Roberts's pivotal opinion is best read as adopting an "anti-leveraging principle" that will find coercion only where all three of these conditions are present at the same time. The anti-leveraging principle both makes the most sense of what the Chief Justice actually said in NFIB and does a better job of accommodating the relevant constitutional values than do plausible alternative readings of the case. Although that principle threatens the constitutionality of far fewer conditional-spending laws than do those alternative readings, it raises challenging questions about the constitutionality of certain spending conditions. And it gives states an important new tool in negotiations with federal administrators. participants in a faculty workshop at the American University Washington College of Law, and, as always, Margo Schlanger for helpful conversations (online and in person) and comments on earlier versions of this Article. In the interests of full disclosure, I should note that I was counsel to Dr. David Satcher and seventy-eight health-care, disability, child-welfare, and other organizations who filed a brief as amici curiae on the Spending Clause issues in NFIB. All views expressed in this Article are mine alone.