Dole’s Future: A Strategic Analysis

Authors

Neil S. Siegel, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

2008

Journal Title

Supreme Court Economic Review

ISSN

2156-6208

DOI

10.1086/655884

Abstract

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with some but not great caution. It would be sensible for Congress to operate extensively within the large universe of potential interventions that do not implicate the subject matter of previous decisions. Moreover, it would be sensible for Congress to operate within the small universe of possible interventions that do implicate the subject matter of past rulings if the Court in those decisions indicated the permissibility of a Spending Clause substitute, or if Congress deemed its interest sufficiently important that it was worth taking the modest risk of provoking the Court to revisit Dole.

First Page

165

Last Page

204

Num Pages

40

Volume Number

16

Issue Number

1

Publisher

University of Chicago Press

Recommended Citation

Neil S. Siegel, Dole’s Future: A Strategic Analysis, 16 Sup. Ct. Econ. Rev. 165 (2008).
Available at: https://scholarship.law.tamu.edu/facscholar/2269

File Type

PDF