A thoughtful analysis of the spending clause/coercion issue after NFIB by Kenneth Thomas at CRS was sent along by a helpful TIE reader. This paper is considerably more clear than the Court’s opinion:
Thus, to the extent that a coercion remains relevant after NFIB, it would appear to apply principally where there is an existing program, and states are mandated to adopt a new and independent program at the risk of the state losing the existing funds. In this case, a court will need to consider whether the loss of funds for failure to adopt this new and independent program is coercive. Justice Roberts did not identify a standard to determine what level of funding withholding would be coercive, although he did conclude that withdrawal of federal program funds which represents ten percent of an average state’s budget constituted a “gun to the head” and was a form of “economic dragooning.” How courts are to consider grant withdrawals below ten percent, however, is not addressed by the Roberts opinion, and Justice Roberts declined to speculate where such a line would be drawn.
See also my earlier post on the CRS view that the MOE was not struck down.
Both papers suggest coercion doctrine will not have a revolutionary effect in federalism, but the people who will make that decision work at 1 First Street in DC.
@koutterson
