David Chen (New York University School of Law) has posted Anti-Coercion Beyond the Spending Clause (California Law Review, forthcoming) on SSRN. Here is the abstract:
NFIB v. Sebelius announced a constitutional anti-coercion principle: the federal government may neither directly commandeer state capacity, nor indirectly coerce states to give that capacity up. Yet, for all the headlines the opinion generated, the conventional understanding remains that anti-coercion applies only to exercises of the spending power. The federal government, however, offers a variety of inducements to states beyond conditional spending. And under the second Trump administration (though not exclusively in it), Washington has innovated novel methods of inducing state cooperation, including criminally investigating state and local officials who refuse to cooperate with its immigration enforcement agenda, refusing to deliver ballots in states that will not hand over voter data, and even surging armed agents into cities with disfavored policies.
This Article provides a systematic account of the broader federal inducement toolkit and reinterrogates both the scope and measure of anti-coercion. As to scope, it challenges the conventional understanding that NFIB’s anti-coercion rule is a Spending Clause constraint and argues instead that it is a federalism constraint. The principle is best understood as one manifestation of a more general anti-circumvention principle immanent in states’ structural entitlements under the Tenth and Eleventh Amendments. Relocating anti-coercion means that it applies beyond conditional spending legislation, covering executive conditions, non-spending inducements, and potentially inducements that indirectly target states.
As to measure, I argue that drawing the line between permissible pressure and impermissible coercion requires accounting for the institutional particulars of federal-state bargaining rather than, as current doctrine and scholarship do, analogizing states to private bargainers. States are not private individuals, but public representative institutions; the constitutional entitlements they trade are structural safeguards rather than individual rights; and they bargain within a constitutional matrix of both horizontal and vertical separation of powers.
These two interventions do not solve every coercion puzzle, but they situate debate about federalism’s rules of engagement on firmer conceptual terrain that is also more faithful to the institutional realities of our federalism. And they bring into view inducements that conventional coercion theories have difficulty evaluating.
Highly Recommended!
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