More than the Bostock decision itself, structural defects in legal conservatism spell trouble for its future as a cohesive movement.
Earlier this month, the Federalist Society held its always-excellent Annual Student Conference in Austin, Texas. Among the highlights: a panel on federal grants and transfers, featuring Lynn Baker (University of Texas Law School), Sam Bagenstos (Michigan Law School), and yours truly. Graciously moderated by Judge Edith Jones (Fifth Circuit). The tape is here.
Professor Baker’s remarks provide a concise summary of the state of the law on federal spending after NFIB v. Sebelius. Sam Bagenstos elaborates on the theme. Plus, he has a truly terrific, eminently fair-minded paper on the Medicaid piece of NFIB here. (He presents an “uneasy defense” of the decision. It’s the only remotely plausible defense I’ve seen.) The principal effect of the opinion, he argues, has been to strengthen the bargaining position of states vis-à-vis the feds. That strikes me as precisely right.
My further, oft-rehearsed view: contrary to NFIB and conservative lamestream opinion, I don’t think there’s a coherent theory of federal spending “coercion.” And even if that theory existed it wouldn’t do any good. The problems of federal spending programs have nothing to do with coercion; they have to do with freakish incentives. Nothing in NFIB or “coercion” theory does anything to address those problems.
Correction: an informed and courteous reader has pointed out that my earlier post on pharmaceuticals and federal preemption contains a significant error. The Supreme Court vote in Wyeth v. Levine was 6-3, not 5-4. Thus, Justice Thomas’s concurrence wasn’t exactly decisive. Reminder to self: never do things from unaided memory. Apologies, and thanks.