Dwight G. Newman (University of Saskatchewan College of Law) & Michelle Biddulph (University of Saskatchewan College of Law) have posted Comparativist-Structural Approaches to Interpretation of the Post-Obamacare Spending Power (Cardozo Journal of International and Comparative Law (JICL), Forthcoming) on SSRN. Here is the abstract:
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This article examines the spending power dimension of the recent United States Supreme Court ruling on the Affordable Care Act from the unique perspective of situating it within a comparativist analysis alongside Canadian and Australian approaches to a federal spending power. It does so, in particular, in the context of two competing approaches to the anticoercion rule within a divided majority at the United States Supreme Court. Part II of the paper examines this division in depth and shows how standard approaches to determining the resulting rule end up in ambiguity. Part III shows how even those justices commonly considered originalist actually rely on structural and pragmatic reasoning in the case and argues that this reality opens the door to comparative analysis of federalist structures. Part IV offers an in-depth examination of Canadian and Australian approaches, noting the ongoing scholarly developments on Canada’s federal spending power and a June 2012 Australian case putting limits on Australia’s spending power provisions. Part V develops an argument that the different approaches to the spending power reflect an underlying set of structural considerations about federalist structure and shows why this analysis favours one of the two different formulations of the spending power rule after the Affordable Care Act decision. The piece thus brings together a comparative analysis not present elsewhere in scholarly literature with a unique perspective on the Affordable Care Act decision.