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.

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6 Responses

  1. brad says:

    Aren’t the Reconstruction Acts and their requirement to ratify the Fourteenth Amendment or be totally disenfranchised governed by military law a more radical version of the hypo?

  2. Gerard Magliocca says:


  3. Brett Bellmore says:

    The hypo is kind of silly in a modern context, it requires a Congress which views Article V as necessary to ‘change’ the Constitution. Congress has not made a serious effort to pass an Article V amendment in decades, the preferred approach today is to simply select Justices who will interpret the Constitution as somehow already meaning what Congress wants. This has the advantage of not allowing the states to refuse to ratify.

    A far more likely scenario is one where the states themselves make an effort to circumvent Congress with an Article V convention, and Congress is attempting to prevent the convention from happening, or the states from ratifying the product.

    Though even there the fate of the 27th amendment shows Congress could likely use the judiciary to render the amendments moot.

  4. Erik M says:

    I understood the purpose of saying an amendment is a political question is that a Court can’t invalidate part of the document which gives it its own authority. It would, in effect, give them tremendously greater theoretical power. A similar analogy is how impeachments are political questions. A Judge can’t invalidate a process that is used to remove them.

    Anyway, given the level of coercion in the Reconstruction amendments, I can’t see anything going beyond that. Even if it were justiciable, it’s night and day compared to normal statutes.

  5. Joe says:

    The approach alleged in #3 is not something that just happened in recent decades and the responsibility should be put more on executives, who actually “select” the judges. Congress has always generally agreed to the choices.

    Congress showed less willingness to change before the 20th Century. Putting aside a special case involving a civil war, the document was not amended at all for a long time. Compared to a few decades, this is pretty notable. I continue to disagree with Brett’s opinion as to the 27A.

    I doubt the hypo will happen, but who knows, but I guess it would violate the principles of Sebelius at some point.

  6. Joe says:

    As to the Reconstruction Amendments, Prof. Akhil Amar argued that the “would you rather” test there was warranted by the republican government provision — the South showed evidence of not protecting that and ratifying them would be a sign of good faith. Given the aftermath of the Reconstruction, one might argue the states came off rather easy for quite some time. In time, as their good faith would be shown, the choice might be less justified.