I would like to thank David Walker, Robert Gilmour, Janet Blasecki, and Samuel Krislov for their helpful comments and suggestions on drafts of this article. An earlier version was presented at the Law and Society Association Annual Meeting, Chicago, Illinois, 27–30 May 1993.

1. Kreimer, Seth F., “Allocational Sanctions: The Problem of Negative Rights in a Positive State,” Pennsylvania Law Review 132 (1984): 1296.Google Scholar

2. See Reich, Charles A., “The New Property,” Yale Law Journal 73 (1964): 733–87CrossRefGoogle Scholar, for the seminal discussion of government largesse.

3. U.S. Constitution, Article I, Sec. 8.

4. See Walker, David B., Towvard a Functioning Federalism (Boston: Little, Brown & Co., 1981), p. 10.Google Scholar

5. See, e.g., Sullivan, Kathleen M., “Unconstitutional Conditions,” Harvard Law Review 102 (1989): 1413–1506CrossRefGoogle Scholar; Epstein, Richard A., “The Supreme Court, 1987 Term—Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent,” Harvard Law Review 102 (1988): 1–104CrossRefGoogle Scholar; Mccoy, Thomas R. and Friedman, Barry, “Conditional Spending: Federalism's Trojan Horse,” Supreme Court Review 1988 (1988): 85–127Google Scholar; Rosenthal, Albert J., “Conditional Federal Spending and the Constitution,” Stanford Law Review 39 (1987): 1103–64CrossRefGoogle Scholar; Kreimer, “Allocational Sanctions;” and Kaden, Lewis B., “Politics, Money, and State Sovereignty: The Judicial Role,” Columbia Law Review 79 (1979): 847–97.CrossRefGoogle Scholar

6. 297 U.S. 1 (1936).

7. Kreimer, , “Allocational Sanctions,” pp. 1296–97.Google Scholar

8. See note 15, below.

9. Kreimer, , “Allocational Sanctions,” p. 1297.Google Scholar

10. The direct judicial management and reform of executive departments and agencies such as prisons and school systems, and associated inroads into the legislative budgeting function, seem particularly notable. See Wood, Robert C., ed., Remedial Law: When Courts Become Administrators (Amherst, MA: University of Massachusetts Press, 1990).Google Scholar

11. See, e.g., Massachusetts v. Mellon and Frothingham v. Mellon, 262 U.S. 447 (1923), and Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464 (1982).

12. See, e.g., Flast v. Cohen, 392 U.S. 83 (1968); Bowen v. Kendrick, 487 U.S. 589 (1988); Minnesota Fed'n of Teachers v. Randall, 891 F. 2d 1354 (8th Cir. 1989); and Lamont v. Woods, 948 F. 2d 825 (2nd Cir. 1991). Notably, all of these cases involved alleged violations of the First Amendment Establishment Clause.

13. Rosenthal, , “Conditional Federal Spending,” pp. 1112–13.Google Scholar

14. McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). So stark a formulation would not be acceptable today.

15. The Supreme Court has generally held that “legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress's power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’” Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981). But see American Hospital Ass'n v. Schiveiker, 721 F. 2d 170, 182–3 (7th Cir. 1983) (citation omitted): “a grant-in-aid program… is an exercise by the federal government of its uthority under the spending power to bring about certain public policy goals. The government acts by inducing a state or private party to cooperate with the federal policy by conditioning receipt of federal aid upon compliance by the recipient with federal statutory and administrative directives. The ‘conditions' of this arrangement are not the result of a negotiated agreement between the parties but rather are provided by the statute under which the program is administered. …The contract analogy thus has only limited application.”

16. See, e.g., Kreimer, , “Allocational Sanctions,” pp. 1382–93.Google Scholar

17. “Congress shall make no law… abridging the freedom of speech.” U.S. Constitution, Amendment I.

18. Commonwealth v. Davis, 162 Mass. 510,511,39 N.E. 113, 113 (1895),aff'd, 167 U.S. 43 (1897).

19. See Kreimer, , “Allocational Sanctions,” pp. 1304–14.Google Scholar

20. Arnett v. Kennedy, 416 U.S. 134, 153–4 (1974).

21. Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593–94 (1926).

22. Sullivan, , “Unconstitutional Conditions,” p. 1416.Google Scholar

23. See Rosenthal, , “Conditional Federal Spending,” p. 1107.Google Scholar

24. Ibid., p. 1113. See, e.g., United States v. Gerlach Live Stock Co., 339 U.S. 72 738 (1950), and Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 294 (1958), upholding the promotion of agriculture through federal irrigation projects; Buckley v. Valeo, 424 U.S. 1, 90–91 (1976), upholding public campaign financing; and Fullilove v. Klutznick, 448 U.S. 448,473–78 (1980), upholding minority set-asides in federally funded public works projects. See also Stop H-3 Ass'n v. Dole, 870 F. 2d 1419 (9th Cir. 1989), upholding the building of an “interstate” highway in Hawaii, for the lower federal court perspective.

25. 297 U.S. 1,65(1936).

26. Helvering v. Davis, 301 U.S. 619,640 (1937).

27. 424 U.S., p. 90 (emphasis added).

28. Walker, David B., “Federal Judges and Federal Grants: A Dimension of Today's Dysfunctional Federalism,” in Awakening the Slumbering Giant: Intergovernmental Relations and Federal Grant Law, (Washington, D.C.: Advisory Commission on Intergovernmental Relations, 1980), p. 98.Google Scholar

29. 297 U.S., pp. 64,73.

30. Ibid., pp. 70–71.

31. 301 U.S. 548, 589–90 (1937).

32. Ibid. (emphasis added).

33. Rosenthal, , “Conditional Federal Spending,” p. 1127 (citation omitted).Google Scholar

34. Although Steward Machine involved a test of the taxing power, the distribution of fiscal benefits through the spending power is, economically, essentially similar to the effects of tax expenditures. The Court's attitude toward tax credits has in some cases mirrored its view of conditional spending: “Deductions are a matter of grace, not of right.” Cammarano v. United States, 358 U.S. 498, 515, (1959), Douglas, J., concurring. See also Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983). For a discussion of some of the disparities between taxing and spending policy, see Rosenthal, , “Conditional Federal Spending,” pp. 1123–24.Google Scholar

35. 330 U.S. 127(1947).

36. Ibid., p. 143.

37. Ibid., pp. 143–44, quoting Massachusetts v. Mellon, 262 U.S. p. 482.

38. 483 U.S. 203 (1987).

39. Ibid., p. 206.

40. Ibid., p. 211, quoting Steward Machine, 301 U.S. p. 590.

41. See McCoy and Friedman, “Conditional Spending,” for a related analysis of Dole based on a theory of delegated regulatory power.

42. 705 F. Supp. 605,609 (D.D.C. 1988) (emphasis added).

43. 886 F. 2d 404, 410 (D.C. Cir. 1989). Again, the Clarke courts mixed normative arguments about “coerciveness” with arguments related to independent prohibitions on unconstitutional conditions. It should also be noted that previous conditional spending had, in fact, reached “a level such as to render inevitable” a state's submission to Congress' will, with the blessing of the judiciary. A national speed limit was established through a condition which threatened to cut off 95% of Nevada's federal highway aid for noncompliance. State of Nevada v. Skinner, 884 F. 2d 445 (9th Cir. 1989). Despite the high percentage of funds at risk, the Skinner court reasoned that it could avoid the question of whether the condition involved was coercive, because Congress could obviously achieve through “the more gentle commands of the Spending Power” what it could legitimately compel under the Commerce Clause. Ibid., p. 449. Apparently, no other constitutional grant of authority existed to allow Congress to limit the legislative “speech” of the D.C. City Council as it did in Clarke. But see text accompanying notes 65–70, below, regarding the restriction of speech at federally funded family planning clinics through the spending power.

44. See, e.g., Dole, 483 U.S., pp. 207–211; Pennhurst State School and Hospital v. Halderman, 451 U.S. p. 17, n.13; and Steward Machine, 301 U.S. pp. 590–91. Notably, the Court set forth in Dole a 4-prong list of restrictions upon the spending power without any acknowledgement that those criteria have been almost completely ineffectual since 1937.

45. See, e.g., Gregory v. Ashcroft, 111 S. Ct. 2395 (1991), upholding the right of states to determine the qualifications of government officials.

46. City of Macon v. Marshall, 439 F. Supp. 1209 (M.D. Ga. 1977).

47. See, e.g., Montgomery County v. Califano, 449 F. Supp. 1230 (D. Md. 1978), aff'd 599 F. 2d 1048 (4th Cir. 1979); North Carolina ex rel. Morrow v. Califano, 445 F. Supp. 532 (E.D.N.C. 1977), aff'd mem., 435 U.S. 962 (1978); Florida Dep't of Health v. Califano, 449 F. Supp. 274 (N.D. Fla. 1978), aff'd per curiam, 585 F. 2d 150 (5th Cir. 1978), cert, denied, 441 U.S. 931 (1979).

48. Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256 (1985).

49. Glenpool Utility Services v. Water Dist. No. 2,861F. 2d 1211 (10th Cir. 1988).

50. Counsel v. Dow, 849 F. 2d 731 (2nd Cir. 1988).

51. See, e.g., District of Columbia v. Train, 521F. 2d 971,993 n. 26 (D.C. Cir. 1975), stating that “state cooperation and participation in federal regulatory programs” is “traditionally” obtained “by offering the states a sufficiently attractive incentive or by threatening to withdraw a federal benefit they are presently receiving;” and Maryland v. Environmental Protection Agency, 530 F. 2d 215, 228 (4th Cir. 1975), suggesting the “alternate whip of economic pressure and seductive favor.”

52. Hickok, Eugene W. Jr., “Federalism's Future before the U.S. Supreme Court,” in Annals of the American Academy of Political and Social Science, ed. Kincaid, John (Newbury Park, CA: Sage Publications, Vol. 509, 05 1990), p. 78.Google Scholar

53. 374 U.S. 398 (1963).

54. See Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987), and Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981).

55. 394 U.S. 618 (1969).

56. 392 U.S. 309 (1968).

57. Aid to Families with Dependent Children, then a program of the Department of Health, Education, and Welfare.

58. In Federal Communications Commission v. League of Women Voters of Califonia, 468 U.S. 364 (1984), the Supreme Court did hold that a Congressional ban on editorializing by federally funded, noncommercial television and radio stations violated the First Amendment. But see Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983), which barred nonprofit organizations from using tax-deductible contributions for lobbying activities.

59. Wyman v. James, 400 U.S. 309 (1971).

60. Harris v. McRae, 448 U.S. 297 (1980).

61. United States v. Lee, 455 U.S. 252 (1982).

62. Lyng v. Castillo, 477 U.S. 635 (1986).

63. Lyng v. International Union, UAW, 485 U.S. 360 (1988).

64. Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984).

65. Rust v. Sullivan, 111 S. Ct. 1759 (1991).

66. Ibid., p. 1772.

67. Ibid., p. 1775, n. 5. This reasoning reflects the Court's tendency to find “coercion conceptually impossible when the government has merely declined to subsidize a right… ‘Penalties’ coerce; ‘nonsubsidies’ do not. “See Sullivan, , “Unconstitutional Conditions,” pp. 1439–42.Google Scholar

68. Ibid., p. 1778.

69. Ibid., p. 1782, n. 3, quoting United States v. Kras, 409 U.S. 434, 460 (1973)Google Scholar (dissenting opinion).

70. Ibid., p. 1786.

71. The Federalist, No. 51.

72. The Federalist, No. 78, and Nos. 22 and 37.

73. The Federalist, No. 41.

74. Alexander Hamilton's phrase, The Federalist, No. 34.

75. The Federalist, No. 30. Hamilton qualified his statement “with propriety,” something entirely lacking in the current context.

76. See, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 547–555 (1985).

77. See, e.g., “White House Allows Some Advice at Public Clinics about Abortion,” The New York Times, 21 March 1992, p. 1, col. 3.

78. See also Mccoy, and Friedman, , “Conditional Spending,” pp. 123–25.Google Scholar

79. Mcconnell, Michael W., “The Selective Funding Problem: Abortions and Religious Schools,” Harvard Law Review 104 (1991): p. 1050.CrossRefGoogle ScholarPubMed