Article Five, the Spending Clause, and Federalism

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. BDG says:

    But, after _Sabri_, is there anything at all left of the “reasonable relationship” requirement of _New York_?

    And what do you mean by “pressure”? If the states don’t want to sign, they don’t have to take the money. If they’re short of funds, why can’t they just raise taxes? See 88 B.U. L. Rev. 875.

    Or, if you think any federal efforts to encourage state signature are unconstitutional, then what about political parties?

  2. jtanner says:

    It is fair to say that the civil war and post-bellum situations were sui generis, and not contemplated at all by the constitution. Certainly the current Court would strike such a spending bill down, and I expect that any era Court would give it short shrift absent reconciliation after internal armed conflict and the eradication of a major domestic institution that was at the core of that conflict.

    Note — the anti-spam word for this post was the name of a major retailer. You should charge them — or do you? Clever, these professors.

  3. jtanner says:

    The next anti-spam word was the name of a musical (CD available at stores everywhere). Ingenious!

  4. John says:

    This hypo would be better if the proposed amendment was spelled out in some detail and same with the spending restriction. Do you have anything in mind?

    I am fairly ingnorant on post civil war history, but it does seem like a unique situation that could be easily distinguished.

  5. Fred Droney says:

    not under South Dakota V Dole