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Thursday, June 28, 2012

The ACA cases, conditional spending, and coercion

I'm not (nearly) as far along as the other Rick is in figuring out what I think of today's ACA cases.  I'm glad my friend and teacher Akhil Amar will be okay, and -- unlike Ethan -- I'm inclined to think the Chief did what he did because he thinks, all things considered, it's a pretty-much-right way to go, consistent with his Lopez-esque discussion, early in the opinion, about enumerated powers, federalism, and judicial review.  I also still have the view that the efforts, during the lead-up to today's decisions, to anticipatorily establish that a ruling against the Act would be illegitimate, etc., were lame.

Once upon a time, I had a strong interest, and maybe even something approaching expertise, in the conditional spending / regulation-by-contract / South Dakota v. Dole business, and its place in the so-called "New Federalism" (Read this, please).  And so, I'm very interested in the question whether language like this, in the Chief's opinion, will have any Congress-disciplining or judge-emboldening effects:  "Respecting this limitation [on conditional spending] is critical to ensuringthat Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system."  And, later, he connects the Dole / conditional-spending doctrine (if that's what it is) with the Printz and New York "commandeering" themes.

Stay tuned!

Posted by Rick Garnett on June 28, 2012 at 11:38 AM in Rick Garnett | Permalink


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I think that the ACA opinion advances federalism and states' rights. Roberts found the Act unconstitutional under the Commerce Clause, and he limited the federal government's ability to corece states into enacting regulatory schemes. For my full analysis, see The Legal Skills Prof Blog at http://lawprofessors.typepad.com/legal_skills/2012/06/obamacare-wins-but-so-does-federalism.html.

Posted by: Scott Fruehwald | Jun 28, 2012 1:23:16 PM

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