Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation

The vital role of Spending Clause legislation in the operation of our government flies below the popular radar. Not many people realize that programs like Social Security, special education, and the current economic stimulus efforts take the form of laws exercising Congress's power under the Spending Clause of the Constitution. Spending Clause statutes exercise this power by imposing conditions on the funding recipients. But this source of expansive federal power is under pressure. The United States Supreme Court's conservative members have developed and begun to use more aggressively a clear statement rule of interpretation that, by placing strict requirements regarding the conditions contained in the statutory text, narrows the reach of Spending Clause legislation. This Article provides a comprehensive look at the development and use of the clear statement rule for federal spending legislation. It uses a single statutory scheme, the Individuals with Disabilities Education Act, as a lens to examine the extent of reliance on the rule, with particular focus on two recent cases. I review the federalism-based justifications for the rule and recommend a rule of appropriate scope and strength. The purpose of giving states notice of their essential obligations under spending legislation is served by a far less rigid version of the rule-- one that looks to the core obligations imposed by the statute, and recognizes notice drawn from legislative history, judicial interpretations, and administrative interpretations, in addition to statutory text.