This Article proposes a new tier of scrutiny, “unmistakably clear,” for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it is unmistakably clear that it is coercive. In order to develop this proposal, this Article traces the debate over the spending power from the Federalist Papers up through the decision in National Federation of Independent Business v. Sebelius, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the case yields not only the name for the new standard of review but also the technique for conducting it. Courts applying the unmistakably clear standard will grant Congress significant deference, even more than rational basis review. Nonetheless, this standard does provide some limits to congressional authority, limits that were crossed by the Affordable Care Act’s Medicaid expansion condition. Meanwhile, the level of deference inherent in the unmistakably clear standard will permit federal, state, and local governments to solve public policy problems in a cooperative, optimal federalism manner.
Dale B. Thompson,
“Unmistakably Clear” Coercion: Finding a Balance Between Judicial Review of the Spending Power and Optimal Federalism,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol50/iss3/4