Judicial capacity and the conditional spending paradox

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8 Scopus citations


This Article examines the spending power and anti-commandeering principle through the lens of the author's judicial capacity model of Supreme Court decision making. Taking the Court's recent decision in NFIB v. Sebelius as a jumping-off point, this examination yields three important payoffs. First, it helps to explain the Court's historically broad interpretation of the spending power. Second, it refutes the conventional wisdom that this broad interpretation cannot be reconciled with the anti-commandeering principle-a view the Article dubs the 'conditional spending paradox.' Third, it offers a rigorous theoretical basis for predicting that NFIB's spending power holding will be short-lived. This account obviously has significant implications for the spending power and anti-commandeering doctrine. It also contributes to a broader understanding of the influence of judicial capacity on the substance of constitutional law.

Original languageEnglish (US)
Pages (from-to)339-381
Number of pages43
JournalWisconsin Law Review
Issue number2
StatePublished - 2013

ASJC Scopus subject areas

  • Law


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