The Spending Power and the Federalist Revival

This Article, which was prepared for a 2001 Chapman University Law School symposium on "The Spending Claus: Enumerated Power or Blank Check?," argues that a largely unfettered congressional spending power undermines the Constitution's protections for state autonomy and reduces aggregate social welfare in two major ways: through systematic fiscal redistribution among the states and conditional federal spending. Part I explains how the modern Congress regularly uses fiscal redistribution among the states and conditional federal spending to impinge, intentionally or unintentionally, on the autonomy that the Framers sought to guarantee the states. Part II demonstrates that the states cannot protect themselves through the federal political process against Congress's exercise of its spending power, notwithstanding the fact that Congress is comprised of representatives of the states. It goes on to demonstrate that an amendment to enhance the existing, unenforced constraints on Congress's spending power will never be formally proposed, let alone ratified, because an identifiable group of states -- numerous enough to block the proposal of such an amendment -- systematically and unjustifiably benefits from the existing regime. Part III argues that any solution rests with the Courts' willingness to exercise judicial review under the Spending Clause and concludes with speculation on why the modern Court nonetheless has so aggressively declined to play any meaningful role in limiting Congress's spending power.