"Unmistakably Clear" Coercion: Finding a Balance between Judicial Review of the Spending Power and Optimal Federalism

This article proposes a new tier of scrutiny, unmistakably clear, for conducting judicial review of congressional authority under the Spending Clause. Under this standard, a condition would be unconstitutional only if it is unmistakably clear that it is coercive. Courts applying this standard will grant Congress significant deference, even more than rational basis review. Nonetheless, this standard does provide some limits to congressional authority, limits that were crossed by the Affordable Care Act’s Medicaid expansion condition. In order to maintain a balanced perspective, courts should apply the unmistakably clear standard to their review of congressional spending power conditions. Doing so will enable courts to define appropriate limits to congressional authority under the Spending Clause and at the same time, will permit federal, state, and local governments to solve public policy problems in a cooperative, optimal federalism manner.