As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it cannot realize directly. In this article I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with some but not great caution. It may sensibly operate within the large universe of interventions that do not implicate the subject matter of previous decisions. Moreover, Congress may sensibly operate within the small universe of interventions that do implicate the subject matter of past rulings if the Court in these decisions indicated the permissibility of a Spending Clause substitute or if Congress deems its interest sufficiently important that it is worth taking the modest risk of causing the Court to revisit Dole.
Neil S. Siegel, Dole’s Future: A Strategic Analysis, 16 Supreme Court Economic Review 1-47 (2008)