How much federalism is too much? The answer, of course, depends on whom you ask. It is no surprise, then, that in both judicial and academic debates about the proper balance between national and local power, the fiercest arguments have been fought not over "how much?" (perhaps an impossible question in any event) but "who?" Thus, for each key aspect of national power-for example, the scope of the Commerce and Treaty powers, the Tenth and Fourteenth Amendments, and Congress's ability to subject states to suits for damages by private individuals -- there is an accompanying literature considering who best to decide where the federalism shadow falls. In recent years the Supreme Court has asserted a strong role for itself in nearly all of these areas.
A notable exception is the Spending Clause. Although the Court has penciled in a rough set of judicially-enforceable limits on Congress's power to spend funds "for the general welfare," as a practical matter these guidelines have been purely hortatory. The Court has been content to leave to ordinary politics the balance between national conceptions of "general welfare" and state autonomy.
37 Conn. L. Rev. 155-231 (2004)
Scholarly Commons Citation
Galle, Brian, "Getting Spending: How to Replace Clear Statement Rules with Clear Thinking about Conditional Grants of Federal Funds" (2004). Georgetown Law Faculty Publications and Other Works. Paper 1822.