First I want to note that we still don’t have an opinion in Bilski. You would think that means the opinion will either be deeply theorized or incredibly fractured. Tune in again next week to see if it comes out then. Now on to the main point.
There are many states right now (most notably California) that are under fiscal stress. Some people, like Sandy Levinson, argue that this is because those states have dysfunctional constitutions. This leads me to wonder if a state could be deemed “not republican” under the Guarantee Clause if it goes bankrupt. Suppose that California came to Congress seeking a loan. If Congress said, “OK, but only if you amend your constitution to do X, Y, and Z,” that could pass muster under the Spending Clause if the reform proposals were sufficiently related to fiscal issues. But suppose California just defaulted on its debt. Would Congress then be justified in putting the state into receivership for some period of time? An invocation of the Guarantee Clause would not be justiciable, of course, but that doesn’t answer the constitutional question. What do you think? Does the Tenth Amendment protect a state’s right to default?
(Given the reaction to my post about vice-presidential ticket splitting, maybe I should just declare this “Crazy Idea Week.” Some might say, though, that every week is crazy week when it comes to my posts.)