Hastings Constitutional Law Quarterly


Since 1997, the Court has issued almost a dozen Eleventh Amendment decisions, each of which expanded State sovereign immunity. Meanwhile, the Court's conservative, pro-State justices have discussed what Justice Anthony Kennedy has said is the most important federalism issue before the Court: Congressional authority to place conditions on grants of federal funds.

This article unites those two apparently independent doctrines. It contends that the Conditional Spending Power, as developed by Rehnquist, Scalia, and O'Connor, permits Congress to condition a State's receipt of federal funds upon that State's waiver of immunity to suits regarding how those funds are spent. The article then goes beyond the Conditional Spending Power by showing how other parts of Article I give Congress authority to impose similar conditions on a State's receipt of various federal non-monetary benefits, such as copyrights and patents, regulatory authority, and even access to federal courts. Using those powers, Congress could eliminate, or at least substantially reduce, State immunity from lawsuits in federal court.