Article Five and the Spending Power
Before going into holiday hibernation, I thought I’d talk about an issue that’s come up in a draft chapter that I’m writing for Oxford Univ. Press about constitutional change.
Let’s try to reconcile two lines of Supreme Court doctrine.
1. In Coleman v. Miller, the Court held that whether a state has ratified a constitutional amendment is a non-justiciable political question. Some people read Miller to say that anything related to the amendment process raises a political question, largely because the Supreme Court has a conflict-of-interest in many amendments that are seeking to overturn its decisions.
2. Chief Justice Roberts’s opinion for the Court in Sebelius held that Congress went too far in using its spending power to coerce the states to expand Medicaid.
Here’s the question. Suppose Congress passed a constitutional amendment and then said to the states: “If you vote no on this amendment, you will lose a significant amount of federal money.” Would this raise a justiciable issue? If so, how far could Congress go before running into a constitutional obstacle? I ask this because I think that this tactic will eventually be employed by Congress when you must use Article Five to change something and when enough states stand in the way to make ratification uncertain.
A Merry Christmas and Happy New Year to everyone in CoOp Nation! Unless something exciting happens, I will be on a blogging break until January.