Sovereignty , Autonomy and Conditional Spending

One of the most conspicuous features of the Rehnquist era has been the revival of the concept of enumerated powers as an important theme in constitutional jurisprudence. In the period from 1937 through 1995, the Court routinely concluded that the Commerce Clause granted the federal government power to regulate private activities which were traditionally relegated to local control. However, in United States v. Lopez and United States v. Morrison, a majority of the Court concluded that federal power under the Commerce Clause was subject to significant limitations. By their nature, the decisions in Lopez and Morrison called into question the scope of other enumerated powers as well. One of the most important issues is raised by cases of “conditional” spending—situations in which Congress seeks to extend the reach of its authority by imposing conditions on states’ receipt of federal funds. The early Rehnquist Court decision in South Dakota v. Dole suggested that Congress had broad authority to use this device to achieve its objectives. However, some have argued that Lopez and Morrison implicitly undermine the premises on which Dole was founded. Rather than focusing on the specific reasoning of Lopez and Morrison, this article will measure the constitutionality of conditional spending against basic principles of constitutional interpretation. The article will first briefly summarize the decision in Dole itself. The article will then observe that the spending power by its terms is plenary, and that there is no direct evidence which suggests that the framers considered the issue of conditional spend-