The New Federalism, the Spending Power, and Federal Criminal Law

Abstract

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I and may promote policy goals that might lie beyond the reach of its enumerated powers merely by attaching conditions to the money it spends. Thus, talk of revolution notwithstanding, the Spending Power continues to provide practically limitless opportunities for the national government to shape policy at the state and local levels of life and government. This Article considers whether and to what extent Congress may use its Spending Power - standing alone, or in conjunction with the Necessary and Proper, or Sweeping, Clause - to create, prosecute, and punish federal crimes. In particular, it examines the challenges to a particular federal anti-corruption statute, and concludes that, even if the Commerce Clause is understood to convey to Congress almost plenary regulatory authority, the power of the purse is not the power to police. That is, a generally applicable federal criminal statute cannot be regarded as a spending condition, and not even the Sweeping Clause is a license for hungry dog criminal jurisdiction. What's more, the expansion of federal criminal jurisdiction through spending is inconsistent with the structures explicitly created and reasonably implied by our Constitution, with the values these structures were designed to advance, and with the liberties they were intended to protect. The Article's doctrinal claims cohere well with leading themes in contemporary constitutional law. There are, for example, rich connections between the Article's arguments about conditional spending, the Sweeping Clause, and criminalization, on the one hand, and contemporary debates in First Amendment law relating to government speech, forum analysis, and expressive association, on the other. In addition, the understanding of the Spending Power defended in the Article serves not only as a complement to, but a crucial component of, the renewed emphasis on mediating institutions and civil society that has been provocatively identified by Professor John McGinnis as the enduring legacy of the Rehnquist Court. The Article closes with the suggestion that whatever formalism might be found lurking in its arguments has a worthy pedagogical function as it helps to instill, perhaps, what the settled disposition on the part of the people in favor of local diversity and prerogative and the disciplined love of liberty that transcends the desire for immediate gratification, both of which are required for a truly robust federalism.