Prognosticating Roberts

Based on last week’s hearings, it’s hard to know exactly what John Roberts will do if he’s confirmed as Chief Justice and if the education world’s legal experts know, they’re not telling either.

But, this passage in a recent Jeffery Rosen TNR piece ($) about Roberts ought to give the anti-NCLB crowd pause…

The most notable area where Roberts would be more deferential to Congress than O’Connor relates to Congress’s ability to condition the grant of federal funds on a state’s agreement to respect federal law. This is Congress’s most significant power over the states–just as significant as its power to regulate interstate commerce, if not more so. For example, federal civil rights laws that forbid state programs and institutions receiving federal funds from discriminating on the basis of race and sex depend on a broad interpretation of Congress’s spending power. Similarly, Congress can use its spending power to circumvent the Supreme Court’s attempts to strike down federal laws under the Commerce Clause. For example, after the Supreme Court held in 1995 that a federal regulation prohibiting guns in schools exceeded Congress’s power to regulate interstate commerce, President Clinton pointed out that Congress could achieve the same result by denying federal funds to the handful of states that refused to prohibit guns in schools on their own.

Along with Justice Clarence Thomas, O’Connor was the Rehnquist Court’s most energetic critic of Congress’s efforts to impose conditions on federal grants to the states. In 1987, she dissented from a crucial case that upheld Congress’s power to deny a portion of federal highway funds to states that refused to adopt 21 as the minimum drinking age. By contrast, Roberts, who participated in the case as an advocate, came to agree with the Court’s majority. In a 1999 interview on public radio, Roberts said, “The basic principle is, if you pay the piper, you get to call the tune. And I think the federal government could say, ‘If we’re giving you money, and it’s related to the area in which we’re trying to get you to waive sovereign immunity, we can require you to consent to suit as a condition of getting those funds.'” This suggests that Roberts would give Congress more latitude than O’Connor to impose conditions on federal funds. Emph. added.

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