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Clear Statement Rules and Federalism:

Today's Sixth Circuit Court of Appeals decision allowing school districts to disregard a part of the No Child Left Behind act is based on a federalism "clear statement rule," in this case the rule mandating that states receiving federal funding cannot be held to conditions imposed by the Congress unless those conditions are clearly stated in a federal statute that provides the states with advance notice of their obligations. Especially in the wake of the Supreme Court's near-gutting of substantive limits on federal power in Gonzales v. Raich, some commentators have claimed that clear statement rules are a valuable alternative means of protecting federalism against excessive federal encroachment. I disagree, and stated my reasons in this 2006 article. Here's an excerpt from the abstract:

The Supreme Court's 2005 decision in Gonzales v. Raich severely undermined hopes that the Court might enforce meaningful constitutional limits on congressional power. In the aftermath of Raich, some observers hoped and others feared that judicial limits on federal power might be resuscitated in Gonzales v. Oregon and Rapanos v. United States, the two most significant federalism cases of the 2005-2006 term. Oregon and Gonzales could potentially have constrained the virtually limitless Commerce Clause power that the Supreme Court allowed the federal government to claim in Raich. A less high-profile case, Arlington Central School District v. Murphy, addressed the scope of Congress' power to set conditions on grants to state governments under the Spending Clause. Although the federal government suffered setbacks in all three cases, none of them actually impose significant constitutional limitations on congressional power.

Oregon, Rapanos, and Arlington all involved challenges to assertions of federal regulatory authority that might run afoul of "clear statement rules." These doctrines require Congress to clearly indicate its intent in the text of a statute before courts can interpret it in a way that "raises constitutional problems," impinges on an area of traditional state authority, or imposes conditions on state governments that accept federal funds....

Part III argues that clear statement rules are neither a viable nor an adequate substitute for substantive judicial limits on federal power. Raich poses a serious threat to the longterm viability of federalism clear statement rules. If congressional Commerce Clause authority is virtually unlimited, it is difficult to see how any assertion of that power can trigger a clear statement requirement by raising constitutional problems or by impinging on a policy area reserved to the states.

The last section of Part III shows that clear statement rules are an inadequate substitute for judicial enforcement of substantive limits on federal power. Clear statement rules sometimes protect the interests of state governments, but that is very different from protecting constitutional federalism. Indeed, state governments will often find it in their interest to support the expansion of federal power; courts applying clear statement rules cannot prevent this. In some situations, Judicial enforcement of clear statement rules might even give state governments additional incentives to promote the enlargement of federal authority.

In the short run, this decision and others like it constitute minor setbacks for federal power. In the long run, as I argue in the article, they might actually facilitate its further expansion by reassuring states that they need not fear unpleasant surprises if they support statutes that expand federal regulatory authority.

Related Posts (on one page):

  1. Clear Statement Rules and Federalism:
  2. School Districts Succesfully Challenge No Child Left Behind:
Adam J:
I'm a bit confused. Although both Raich and Pontiac have to do with federalism, they both draw from completely distinct article 8 powers &I don't see how anyone could have thought clear statement rules could do much to limit federal power. Of course the "clear statement rule" isn't going to do much to help limit federal power, since I would think it only really serves to limit the power of the purse, which is far less intrusive into the state's power since states can always choose not to take the federal money.

Also, I can't see how a clear statement rule can be viewed as a bad thing, just because it might facilitate federal expansion. The rule seems like common sense to me, just as a contract's ambiguities should be construed against the drafter. You seem to be assuming that expansion of federal power is de facto bad, but if expansion results thru consent of the states under the clear statement rule, at least the states know exactly what they are getting into. Presumably the states would only allow the federal expansion when it is good for their citizens.
1.7.2008 11:19am
Ilya Somin:
I'm a bit confused. Although both Raich and Pontiac have to do with federalism, they both draw from completely distinct article 8 powers &I don't see how anyone could have thought clear statement rules could do much to limit federal power. Of course the "clear statement rule" isn't going to do much to help limit federal power, since I would think it only really serves to limit the power of the purse, which is far less intrusive into the state's power since states can always choose not to take the federal money.

As I explain in the article, there are several different clear statement rules, one specific to the SPending Clause, another that is more general and applies to all expansions of federal authority into areas traditionally under state control.

Also, I can't see how a clear statement rule can be viewed as a bad thing, just because it might facilitate federal expansion. The rule seems like common sense to me, just as a contract's ambiguities should be construed against the drafter. You seem to be assuming that expansion of federal power is de facto bad, but if expansion results thru consent of the states under the clear statement rule, at least the states know exactly what they are getting into. Presumably the states would only allow the federal expansion when it is good for their citizens.

State governments often have interests at odds with those of their citizens and at odds with the effective functioning of a system of federalism. I have explained some of the reasons at length in this article.
1.7.2008 11:54am
Adam J:
Thanks for replying. Those are interesting articles. I agree with you to the extent that the clear statement rule is unlikely to resuscitate federalism in any meaningful way.

However, are you arguing that the clear statement rule shouldn't be so strong because it may expand federal power? I should think the benefits of the rule outweigh any possible problems it may cause. I'd prefer clear laws that cause federal expansion to vague laws that can cause federal expansion in a myriad of ways depending on their interpretation. I also think that despite the incentives to concede power that state officials have, they still are likely to have a healthy incentive to maximize the state's power, since it increases their own power. This incentive would generally require them to resist federal power.
1.7.2008 12:36pm
Ilya Somin:
However, are you arguing that the clear statement rule shouldn't be so strong because it may expand federal power? I should think the benefits of the rule outweigh any possible problems it may cause. I'd prefer clear laws that cause federal expansion to vague laws that can cause federal expansion in a myriad of ways depending on their interpretation.

I think that laws that impose obligations on state governments should not have to be any more clear than other federal laws. I don't think that vague laws necessarily lead to more federal expansion than clear ones. Requiring Spending Clause grant conditions to be ultra-clear does, I think, on net lead to expansion of federal power by reducing the risk to state governments and is therefore undesirable.


I also think that despite the incentives to concede power that state officials have, they still are likely to have a healthy incentive to maximize the state's power, since it increases their own power. This incentive would generally require them to resist federal power.

Expansions of federal power can also expand the power of state governments, even as they reduce state autonomy. For example, the former may be expanded by federal grants of funding or by regulations that enable state governments to suppress competition between themselves and establish cartels. Even if a particular expansion of federal power does reduce the power of states as such, state government officials might still support if it promotes their political interests. Thus, state governments often have incentives to expand federal authority, often to the detriment of federalism.
1.7.2008 12:49pm
Adam J:
"I don't think that vague laws necessarily lead to more federal expansion than clear ones. Requiring Spending Clause grant conditions to be ultra-clear does, I think, on net lead to expansion of federal power by reducing the risk to state governments and is therefore undesirable."
I think vague laws are very likely to lead to federal expansion then clear laws, particularly when the authority to interpret those laws rests in the hands of the federal government (of course this is just speculation- I don't have much in the way of research to support this). Why wouldn't the federal government interpret these laws in ways that expand their own power?

I also think that allowing the federal government to create vague laws simply because it may create additional risk for states is probably an inappropriate reason for allowing vague rules. Should the court be deciding an issue in a particular way because it might have the unintended consequence of deterring federalism in a way that doesn't conflict with the Constitution? Personally, I think its better to prevent the Fed from taking advantage of legal ambiguities it itself created, and then find other more direct methods of protecting federalism.


Also, you seem to assume that states are calculating the risk of vagueness if you think clear statement rules will provide additional incentive to accept federal expansion. But if these vague laws actually do create a significant enough risk that states won't accept the funds, wouldn't the federal government have already its own incentive to create clearer laws? I don't think the current state of federal lawmaking reflects this, although I admit I'm not particularly informed. I also thought that states generally don't opt out of federal funding (although yet again I'm pretty uninformed), so has this risk of vagueness been a significant detriment to accepting funds?
Possibly it is because the fed typically offers a large enough sum of funds that state officials will accept them even if they do calculate the risk of vagueness. If that's the case, how does allowing states to make more informed decisions on accepting federal funds result in expanded power?
1.7.2008 1:41pm
Adam J:
One last thing, at the very least, clear statement rules are very likely to reduce this kind of litigation, which is, quite obviously, a good thing.
1.7.2008 1:56pm