Daniel S. Cohen


President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its core, the framework seeks to preserve states’ agency in deciding whether to exchange policy for federal dollars. This core concern and the specific factors that comprise the Dole-NFIB framework are also implicated when the federal government bargains with local governments. Local governments in the United States have evolved from agents of their states to the third-tier of federalism. Accordingly, courts must apply the Spending Clause in a manner that protects local agency just as it protects state agency. This Article proposes two models by which the courts can effectively apply the Spending Clause to protect local governments: the Decision-Maker Model and the Localized Expenditure Model.

The Decision-Maker Model views localities as representative political entities that exercise agency in the same manner as states. Thus, this model applies the Dole-NFIB framework to a locality when the locality in question has the authority to accept the federal government’s financial inducement. The Localized Expenditure Model accepts the traditional, bilateral conception of federalism, but also applies the Dole-NFIB framework to localities because it recognizes the targeted pressure the federal government places on states when it withholds funds from specific localities.

While these models assert different justifications for the role that general-jurisdiction local governments play in the Court’s Spending Clause doctrine, they achieve the same result where local governments are offered and may accept federal funds: the locality is the subject of the Spending Clause analysis. Applying one of these two models and, more broadly, applying the Spending Clause to localities is essential because, as demonstrated by the sanctuary cities controversy, political polarization is increasing along a geographical dimension. Policy divides between federal officials and city leaders will be sharp for the foreseeable future, and federal funds will remain an attractive policy lever. Thus, the use of the spending power must be appropriately constrained to preserve American federalism as it exists.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.