The Spending Power and the Federalist Revival
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Federalist Revival
Lynn A. Baker*
INTRODUCTION
Amid all the attention afforded the Court's recent federalism
decisions, one important fact has gone largely unnoticed:1 The
greatest threat to state autonomy is, and has long been, Con-
gress's spending power.2 No matter how narrowly the Court
might read Congress's powers under the Commerce Clause3 and
* Thomas Watt Gregory Professor, University of Texas School of Law.
<lbaker@mail.law.utexas.edu> This Article was prepared for a symposium on The Spend-
ing 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 par-
ticipants 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 materi-
als. 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 Col-
lege 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 Lo-
pez, 95 COLUM. L. REV. 1911, 1920 (1995) ([11f the Spending Clause is simultaneously in-
terpreted 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 govern-
ment 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 Da-
kota 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
195](ViewImageLocal?handle=hein.journals/chlr4&div=12&collection=journals&method=preview&ext=.png&size=3)
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