Legal Commentary

Everyone knows that judicially enforced limits on Congress' spending power are mostly moribund. But it is an open question whether the Court could ever practically fashion more robust and judicially manageable limits on the spending power The High Court of Australia's decision in Pape v. Commissioner of Revenue suggests that SCOTUS's position is not the inevitable result of the nature of the spending power: While narrowly upholding a Commonwealth tax bonus program, the Court stated that the Commonwealth could not spend money for purposes reserved to the states. The decision is being regarded as a big deal by Australian legal academics, although it remains to be seen whether the HCA will follow through by enforcing limits against the Commonwealth rather than just talking about them.

Thanks to my student, Joe Edwards, for calling my attention to this case. Does anyone know of any other constitutional courts that have limited their central government's spending power? In my own view, the peculiar text of the U.S. Constitution sheds very little light on decisions like South Dakota v. Dole: The American doctrine is driven, instead, by considerations of judicial competence to set manageable standards. The examples of how other federal regimes deal with central governments' spending, therefore, might be instructive the question of whether courts can practically constrain the central government's power of the purse.