The Spending Power and the Federalist Revival

* Thomas Watt Gregory Professor, University of Texas School of Law. This Article was prepared for a symposium on “The Spending Clause: Enumerated Power or Blank Check?,” held at the Chapman University School of Law on January 19, 2001. My thanks to Professor John Eastman for inviting me to participate, to the Chapman faculty and students for their gracious hospitality, and to the conference panelists and participants for a day of stimulating intellectual exchange. I am grateful to the Editors of the Chapman Law Review, especially Richard Tilley and Yvonne Dalton, for their hard work and good cheer throughout the editorial process. University of Texas Law Librarian, Keith Stiverson, went well beyond the call of duty in expeditiously locating various source materials. An earlier version of portions of this Article was presented at the Annual Meeting of the American Political Science Association, Cornell Law School, the University of Iowa College of Law, the University of Virginia School of Law, and the Vanderbilt University Law School; I am grateful for the helpful comments received on each of those occasions. Special thanks to Sam Dinkin, Ph.D., for assistance both with statistical analysis and with our two-year-old daughter, Mahria. 1 The few exceptions include Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1920 (1995) (“[I]f the Spending Clause is simultaneously interpreted to permit Congress to seek otherwise forbidden regulatory aims indirectly through a conditional offer of federal funds to the states, the notion of ‘a federal government of enumerated powers’ will have no meaning.”) (footnote omitted) [hereinafter Baker, Conditional Federal Spending]; Jim C. v. United States, 235 F.3d 1079, 1083 (8th Cir. 2000) (en banc) (Bowman, J., dissenting) (quoting Baker, supra, approvingly); South Dakota v. Dole, 483 U.S. 203, 217 (1987) (O’Connor, J., dissenting) (“If the spending power is to be limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.’ This, of course, . . . was not the Framers’ plan and it is not the meaning of the Spending Clause.”) (quoting United States v. Butler, 297 U.S. 1, 78 (1936) (citation omitted)). 2 U.S. CONST. art. I, § 8, cl. 1 (“The Congress shall have Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .”). 3 See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (holding that the Gun-Free School Zones Act exceeded congressional power under the Commerce Clause); United States v. Morrison, 529 U.S. 598 (2000) (holding that Congress lacked authority under the Commerce Clause to enact civil remedy provision of Violence Against Women Act). Cf. Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 121 S.Ct. 675, 683 (2001) (observing that twice in the past six years the Court has “reaffirmed the proposition