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Unpublished Paper
“Unmistakably Clear” Coercion: Finding a Balance between Judicial Review of the Spending Power and Optimal Federalism
ExpressO (2012)
  • Dale B Thompson
Abstract
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 was “unmistakably clear” that it was 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 the Affordable Care Act Case, finding strong arguments for granting significant deference to Congress’s Spending Clause authority. Careful analysis of the opinions in the Affordable Care Act 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.
Keywords
  • Affordable Care Act,
  • Federalism,
  • Spending Power,
  • Coercion
Disciplines
Publication Date
September 4, 2012
Citation Information
Dale B Thompson. "“Unmistakably Clear” Coercion: Finding a Balance between Judicial Review of the Spending Power and Optimal Federalism" ExpressO (2012)
Available at: http://works.bepress.com/dale_thompson/14/