Garrett and the Spending Clause
emaltz at CRAB.RUTGERS.EDU
Sat Aug 18 11:14:48 PDT 2001
I am on record in the recent symposium in the Chapman Law Review on the
Spending Clause as disagreeing with Garrett et al., as well as oppsoing the
imposition of constitutional restraints on the Spending Clause.
Nonetheless, I think the claim that the imposition of such limitations
would in any sense "reverse the New Deal" is vastly overstated. The
essence of the New Deal and the constitutional doctrine upholding it was
that Congress had broad authority to regulate PRIVATE economic activity.
Indeed, unless my memory is faulty, I believe that New Deal labor
regualtions did not apply to state and local governments at all. Thus,
for example, minimum wage laws did not apply to such governments until 1974.
The point is that unless a strong movement to reconsider Darby and Wickard
develops, the post New Deal structure of federalism will be changed only
at the margins.
>I take it that his question is rhetorical in that what cannot be missed is
>the ever increasing presence in the federal judiciary of judges determined
>to reverse the New Deal to whatever extent possible. I suspect that the
>judges in the Circuit (or, more likely, their clerks) read and were
>influenced by my colleague Lynn Baker's Columbia L. Rev. piece of several
>years ago that called just for such judicial monitoring of federal spending
>with regard to states. *This,* of course, far more than the immunities
>cases or even the limited-power cases like Lopez, is where the future
>action will be if conservatives on the judiciary really want to rein in the
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