SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Tuesday, May 31, 2005

TAKING THE PARAMETERS OF CONGRESSIONAL SPENDING POWER SERIOUSLY. At The Remedy, Professor John Eastman notes a recent concurring opinion by Justice Clarence Thomas in the Cutter v. Wilkinson (2005) case--concerning the constitutional limits of congressional spending power. In Cutter, the U.S. Supreme Court majority upheld the constitutionality of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) under the First Amendment's (anti-)Establishment Clause. But Justice Thomas's important concurrence brings to light a much-neglected constitutional issue of a different sort.

Justice Thomas makes mention of the lingering question as to the constitutionality of the RLUIPA pursuant to Congress' spending power--as well as the constitutionality of the conditions placed upon the states for receipt of federal funds. As Justice Thomas acknowledged in footnote two of his concurrence, he did agree with the majority's decision not to take up the spending power issue. But the judicial recognition of the constitutional issue is of real significance--certainly enough significance to cause some screeching voices on legal academia's left wing to have a cow. (MOOO!) Expect some silly law review articles discussing this concurring opinion in sky-is-falling sort of terminology.

Most law students hear about the political battles in our nation's young history concerning the scope of the powers of Congress to spend--with the stricter Jeffersonian/Madisonian on one side and more expansive Hamiltonian view on the other. Unfortunately, it's arguable that the proponents of political process federalism (who deny that there are judicially enforceable limits to the exercise of the enumerated powers of Congress), have streched the Hamiltonian view so far as to be unrecognizable from its historical underpinnings.

But as Prof. Eastman & Co. point out in the Center for Constitutional jurisprudence's amicus curiae brief to the Court in Cutter, even the Hamiltonian notion of the spending power involved SOME sort of intrinsic limits. Prof. Eastman has previously written an interesting article in an issue of The Chapman Law Review about judicially enforceable constitutional limits upon the spending power. Those ideas feature prominently in the amicus brief.

It was during my own time in law school that I first came across Eastman's spending clause work. In fact, I myself was a student of Prof. David Engdahl--an outstanding constitutional scholar who has written an authoritative and widely-cited article in a 1994 issue of The Duke Law Journal about the origins and history of federal spending power. If I'm not mistaken, the article is simply called "The Spending Power."

There were likely some nuanced differences in the respective views of Profs. Eastman and Engdahl. Yet, regardless of the fact that I haven't devoted enough study to come to a definitive position concerning the scope of the Hamiltonian view of the spending power (which I find far more plausible than the Jeffersonian/Madisonian view), this latest acknowledgement of the spending power issue by Justice Thomas is intriguing and exciting. Congratulations are in order to Prof. Eastman in this regard.

(North Seattle--Green Lake, WA)

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