From the rise of the New Deal through the constitutional litigation over the Affordable Care Act (ACA), conditional federal spending has been a major target for those who have sought to limit the scope of federal power. There are a couple of reasons for this. First, as the Supreme Court narrowed Congress's power to regulate private primary conduct and state conduct in the last twenty years,' conditional spending looked like the way Congress might be able to circumvent the limitations imposed by the Court's decisions. Thus, members of Congress quickly sought to blunt the impact of the Court's decision to invalidate the Gun Free School Zones Act, as well as its sovereign immunity decisions. In the first case, they were successful; in the second, less so? But there is a longer, preexisting trend of federal spending conditioned on requirements that states must fulfill. This trend has grown over many decades, beginning with the New Deal, with some decline in the 1980s but a rebound after that. And, perhaps surprisingly, even a number of conservative Republican governors have found themselves supporting conditional grants-notwithstanding the strings attached. This dynamic is not surprising-actors at each level of government have an incentive to increase conditional federal spending. For these two reasons-the availability of conditional spending to circumvent the Supreme Court's recent limitations on federal power, and the longstanding role of conditional federal spending in the growth of federal programs-many scholars have attempted to develop a constitutional basis for the courts to limit the spending power. The Rehnquist and Roberts Courts offered a number of hints that their jurisprudence might move in the direction favored by these scholars. These hints were particularly evident in the Court's aggressive expansion of the notice requirement.7 The notice requirement itself operated only incrementally to trim particular exercises of the spending power. But individual Justices and lower court judges suggested that a more fundamental set of limitations on the spending power was on its way.
Bagenstos, Samuel R. "Viva Conditional Federal Spending!" Harv. J. L. & Pub. Pol'y 37, no. 1 (2014): 93-9. (Adapted from panel remarks given at the 2013 Federalist Society Annual Student Symposium on March 1, 2013, at the University of Texas School of Law in Austin, Texas.)