At 09:29 PM 10/15/2003 -0500, you wrote:
If I were going to argue that they should (which I haven't thought much
about), I'd start by pointing out that we haven't done a very good job of
coming up with other, substantive limits on the spending power, so
imposing a procedural hurdle in the form of a clear invocation
requirement would cut back on the extent to which that power can undercut
limits on the other powers, like commerce.
Ernie Young
Don't we already have all the clear invocation requirement we need in the
Spending Clause context in the Pennhurst clear statement rule, in all of
its permutations?
And anyway, what seems to be interesting here is that there's no concern
that Congress is using its spending power to get around limitations on
other powers -- here the commerce power justification might well be
stronger than the spending power justification. So even one who agrees
that there should be a clear-invocation requirement for open-ended powers
that allow Congress to circumvent limitations on other powers (like the
spending power and maybe Section 5) would need some other argument to
justify a clear-invocation requirement for a "less powerful" power like the
commerce power.
