Article Five, the Spending Clause, and Federalism

Consider the following hypothetical.  Congress passes a constitutional amendment and sends it to the States for ratification.  The amendment does not get the support of three-fourths of the states as required by Article Five.  Congress responds by passing a law that refuses to appropriate federal funds to any state that has not ratified the amendment in an attempt to coerce them to do so.  One of these holdout states sues claiming that this violates the Spending Clause and the Tenth Amendment.

Would this claim succeed?  The Supreme Court held, in Coleman v. Miller, that the Article Five process is a political question (though not necessarily in all circumstances).  On the other hand, the Spending Clause cases hold that there must be a rational relationship between the conditions placed on federal funds and the funds themselves.  From a federalism perspective, applying pressure to the States would seem like a violation of their sovereign role in making textual changes.  Yet Congress did something similar during Reconstruction when it placed recalcitrant Southern states under military rule until they ratified the 14th Amendment.  How should all of this be reconciled?

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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