Effectuating Principles of Federalism: Reevaluating the Federal Spending Power as the Great Tenth Amendment Loophole

Abstract

Recently, in New York v. United States, United States v. Lopez, and Printz v. United States, the Court signaled a desire to "resuscitate" principles of federalism. Although the Court breathed life into federalism, the Court left federalism's heart lifeless by implicitly approving continued use of the almost limitless spending power. Nevertheless, these decisions should be viewed with optimism as steps toward a goal of realizing the Constitution's command for our federalist structure. This Comment attempts to take the next step in protecting against the blurring of political accountability, by closing the giant loophole around the Tenth Amendment: the Spending Clause power. Specifically, this Comment examines the foundation and operation of federal power not in a vacuum but rather in light of both the Constitutional principles underlying the structure of our government-protection of personal liberties and clear political accountability-and the expansion of federal power. This Comment asserts that continued adherence to the broad interpretation of the spending power is inconsistent with early history and the principles underlying the holdings in New York, Lopez, and Printz. This Comment does not suggest that the federal government should lose its ability to control the destination of federal funds. This Comment instead suggests that the Court at the least adhere to its already-imposed restrictions and recognize that its holdings permit Congress to circumvent the Court's enunciated protections of federalism. Ultimately, this Comment concludes that the Court could effectuate principles of federalism in the spending power arena without departing significantly, if at all, from its federalism and spending power jurisprudence.

Part II of this Comment examines Tenth Amendment principles and the revival of those principles emanating from New York, Lopez, and Printz. Part III analyzes the origin and current status of the spending power. Part IV presents the ramifications of the currently limitless interpretation of the spending power and the need to reassess the current interpretation of that power. Part V briefly explores alternatives for removing the impediments to a proper federal-state balance. Part VI concludes this Comment, suggesting that the Court give full credence to the Framer's design of self-governance and to the Court's own decisions.