The Spending Clause of the U.S. Constitution (Article I, Section 8, Clause 1) gives Congress broad power to authorize spending for the "general Welfare." As part of that power, Congress can restrict how federal funds are used and can place conditions on federal funding to incentivize recipients to change their policies or conduct. The Necessary and Proper Clause (Article I, Section 8, Clause 18) supplements Congress's spending authority, allowing Congress to create conditions or remedies designed to ensure that federal funds are used for their intended purposes.
Funding conditions, though common, are subject to constitutional limitations. First, funding conditions must provide clear notice to the recipient of what actions are required in exchange for federal funds and the consequences of noncompliance. The Supreme Court has analogized spending legislation to a contract between the federal government and an applicant for funds, stating that the applicant must "knowingly and voluntarily" accept the terms of the agreement. Landor v. La. Dep't of Corr. & Pub. Safety, 609 U.S. 59, 68 (2026). Second, funding conditions must be related to the purposes of the federally funded program or activity. Though the precise degree of connection is unsettled, a condition that is "reasonably related to the purpose of the expenditure" usually suffices. New York v. United States, 505 U.S. 144, 172 (1992). Third, although Congress may incentivize states to adopt a particular policy to obtain specific federal funds, it may not coerce state participation. Congress may not, for example, tie an existing funding source on which a state has come to rely to compliance with a new kind of requirement. Fourth, the funding condition may not violate an independent constitutional bar or the related unconstitutional conditions doctrine. For example, Congress may not require governmental recipients, as a condition of receiving federal funds, to take an action that would violate an individual's freedom of speech or free exercise of religion.
Whether a funding recipient is a state or a private entity may affect the applicability of these four general limits on funding conditions. The clear notice and relatedness principles seem to apply regardless of the public or private nature of the funding recipient. The Supreme Court has described these two limits as a means of ensuring that Congress does not attempt to use its spending power to regulate private conduct directly. The independent constitutional bar principle is likely a cross-cutting consideration as well, though its specific application depends on the nature of the funding condition. By comparison, the anti-coercion doctrine primarily concerns the division of power between the federal government and the states, leading some lower courts to question whether it applies when Congress is offering funds to private entities.
Additional legal questions can arise when the executive branch, rather than Congress, imposes a funding condition. Congress often delegates the authority to administer grant programs and disburse financial assistance to federal agencies. Ultimately, however, the "power of the purse" belongs to the legislative branch, not the executive branch. Accordingly, when a federal agency places a condition on federal funding, that condition could give rise to constitutional (i.e., separation-of-powers) or statutory (e.g., Administrative Procedure Act) challenges if the condition arguably exceeds the scope of the agency's delegated authority.
Thus, while Congress's power to authorize and condition federal spending is expansive, a funding condition that exceeds the limits discussed in this report could run afoul of the Constitution.
Congress's spending power comes from the Taxing and Spending Clause of the Constitution, which gives Congress the power to spend federal funds to "provide for the common Defence and general Welfare of the United States."1 The Supreme Court has interpreted this authority to include the power to place conditions on federal funding. The conditions need not be limited to how the funds are spent. Congress can, and often does, use its spending power to incentivize states to adopt Congress's preferred policies or practices. Sometimes Congress authorizes a federal agency to impose additional conditions on participation in a federally funded program.
This report begins with a discussion of the broad reach of the Spending Clause, whose only express, textual limitation is the requirement that federal spending be in pursuit of the national defense or general welfare. Part one also explores how the Constitution's Necessary and Proper Clause may supplement Congress's spending power in some circumstances. The second part of this report discusses the main constitutional limits on Congress's authority to condition federal funding and their application to governmental and private funding recipients. These limits are the clear notice, relatedness, anti-coercion, and independent constitutional bar principles, and the requirement of knowing and voluntary consent to a funding condition. The third part of this report discusses constitutional and statutory limitations on the executive branch's authority to impose federal funding conditions, including the Constitution's separation-of-powers principle and the Administrative Procedure Act (APA).2
In the earliest Spending Clause cases, the Supreme Court considered both whether Congress's spending power was limited to matters on which Congress had the express constitutional authority to legislate and who determines the needs of the "general Welfare."3 As explained below, both of these questions were resolved in favor of Congress's broad spending authority. In addition, the Court has long affirmed Congress's authority to place conditions on federal funding, subject to the constitutional constraints discussed in the next part of the report.4
Because the Constitution provides Congress with a limited set of enumerated powers,5 an early debate emerged among the Framers over whether the Constitution limits Congress's spending power to areas in which Congress could legislate directly, such as matters of interstate commerce.6 James Madison believed the Spending Clause's reference to "general Welfare" in the first clause of Article I, Section 8 "amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section."7 In other words, Madison maintained that Congress could exercise its spending power only to carry out other powers that the Constitution expressly granted to Congress, such as the power to regulate interstate and foreign commerce or to establish post offices.8 In contrast, Alexander Hamilton "maintained the clause confers a power separate and distinct from those later enumerated" and that "Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States."9
In the 1936 case of United States v. Butler, the Supreme Court settled on "the Hamiltonian position."10 The Court held that while "the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress."11 Thus, "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution."12 The Butler Court nevertheless cautioned that this "broader construction leaves the power to spend subject to limitations," including that federal spending be in pursuit of the "common defence" or "general welfare."13
Courts have the ultimate authority to determine whether an appropriation is "in aid of the 'general welfare'" within the meaning of the Spending Clause in light of their constitutional duty to "say what the law is."14 However, the Supreme Court has emphasized that in deciding "whether a particular expenditure is intended to serve general public purposes, courts should defer substantially" to Congress's judgment.15
Helvering v. Davis, decided a year after Butler, illustrated this deference to Congress's judgment.16 There, the Court upheld the Social Security Act's provision of "old age benefits," which primarily took the form of a monthly pension payable to a retiree 65 years of age or older, funded by mandatory, wage-based contributions from employees and employers.17 The Court rejected a Tenth Amendment challenge to this statutory scheme because it came within Congress's power to spend for the general welfare.18 Courts should not second-guess Congress's decision, the Supreme Court stated, unless its "choice is clearly wrong, a display of arbitrary power, not an exercise of judgment," such that there is "no reasonable possibility" that the "legislation fall[s] within the wide range of discretion permitted to the Congress."19 The Court also observed that the general welfare is not a "static" concept because "[w]hat is critical or urgent changes with the times."20
The Court then cited two reasons to defer to Congress's judgment with respect to the Social Security Act. First, after recounting the growth of widespread unemployment during the period that came to be known as the Great Depression,21 the Court observed that Congress had held hearings and made legislative findings showing that the segment of the U.S. population aged 65 and older who were "unable to take care of themselves [was] growing at a threatening pace."22 Second, the Court saw the "problem" as "plainly national in area and dimensions," and beyond the capacity of individual states to handle "effectively."23 The Court reiterated that "the concept of welfare" for purposes of federal spending "is shaped by Congress."24
Thus, while the Spending Clause's reference to "general Welfare" is technically a limit on Congress's spending authority, the Supreme Court has interpreted the concept broadly and with deference to Congress's judgment.25
Complementing its discretion to spend funds for a variety of purposes, Congress has "wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives."26 This latitude is reflected in the range of spending conditions that Congress has enacted over time. For example,
The Supreme Court has upheld each of these laws when challenged on Spending Clause or other constitutional grounds.33
Congress can also adopt certain funding conditions—or remedies for violating them—pursuant to the Constitution's Necessary and Proper Clause, which supplements all of Congress's legislative powers, including its spending power.34 The Necessary and Proper Clause states that "Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."35 In the Court's words, the Clause "authorizes Congress to employ 'necessary and proper' means" for carrying out its spending power.36
In the seminal case McCulloch v. Maryland, the Supreme Court adopted a permissive standard for assessing whether a regulation is "necessary and proper" to carry out a federal power: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."37 The Court cited McCulloch in 2004 in upholding a federal law criminalizing bribery involving officials employed by entities that receive more than $10,000 annually in federal funds.38 The Court reasoned that the Necessary and Proper Clause authorizes Congress to "see to it that taxpayer dollars appropriated under [the spending] power are in fact spent for the general welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt public officers are derelict about demanding value for dollars."39
The Court expressed a potentially more constrained view of Congress's "necessary and proper" authority as it relates to spending legislation in its 2026 decision in Landor v. Louisiana Department of Corrections and Public Safety.40 That case involved the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), a statute that authorizes incarcerated individuals at federally funded correctional facilities (among others) to bring a claim or defense in federal court to challenge government actions that "substantial[ly] burden" their religious exercise.41 An incarcerated individual who prevails on a RLUIPA claim may "obtain appropriate relief against a government," which the statute defines to include state and local governmental entities and officials and "any other person acting under color of State law."42 The Court had previously ruled, in a 2020 decision involving a related statute, that the phrase "persons acting under color of law" allows claims against government officials in their individual (i.e., personal) capacities and the language "appropriate relief" allows for monetary damages in such cases.43 In other words, a defendant sued in his individual capacity would be personally liable for any money damages the court awards if the plaintiff wins.44
In Landor, the plaintiff, an incarcerated individual, sought to hold two state prison officials personally liable for money damages for alleged violations of RLUIPA.45 The Court held that neither the Spending Clause nor the Necessary and Proper Clause authorized such a remedy.46 The Court explained that the Spending Clause requires knowing and voluntary acceptance of a funding condition, but unlike their employer who accepted the conditional funding, the state employees did not consent to facing lawsuits under RLUIPA.47 As to the Necessary and Proper Clause, the Court reasoned that a remedy seeking monetary damages from nonparties to a funding agreement does not "help 'carr[y] into execution' Congress's enumerated power to spend money."48 The Court stated that "while the Necessary and Proper Clause may allow Congress to enact provisions actually incidental to its spending power, like those protecting federal money against graft, it does not tolerate outcomes that would 'undermine the structure of [the federal] government established by the Constitution.'"49
Thus, Congress can create conditions or remedies that are "necessary and proper" to carrying out its spending legislation, though Landor recognizes limits to that authority in reaching individuals or entities that have not consented. Additionally, as with all conditions on federal funding, such conditions must be aligned with the constitutional limits on Congress's spending power discussed in the next section.
The Supreme Court has identified at least four constitutional limits on Congress's power to attach conditions to federal funding.50 First, the condition must be unambiguous so that the recipient can knowingly and voluntarily accept the terms of the funding arrangement (clear notice). Second, the condition must be reasonably related to the program or funding stream it restricts (relatedness). Third, the condition may not be unduly coercive (anti-coercion). Fourth, the condition may not induce the recipient to violate a separate constitutional provision, such as the First Amendment's Free Speech or Establishment Clauses (independent constitutional bar).
The Court's 2026 decision in Landor arguably recognized an additional "consent requirement," explaining that the clear notice, relatedness, and independent constitutional bar principles "apply in addition to—not instead of—the rule that Congress may not use the Spending Clause to bind entities and individuals without their knowing and voluntary consent."51 At the same time, the Court suggested that its Spending Clause precedents already accounted for the need for funding recipients' consent, explaining that both the clear notice and the anti-coercion limits "help ensure real consent exists."52 Whether lower courts come to treat the consent requirement as a separate constitutional limitation or intrinsic to one or more of the first four limits set out above, the requirement principally concerns who can be liable for violating a funding condition. Accordingly, this report discusses the consent requirement under the section "Scope of Liability," which is part of the clear notice discussion.
The foregoing constraints on Congress's spending power stem, in part, from the Spending Clause itself and the structure of enumerated powers in Article I. Because states are often the recipients of federal funding, these judicially recognized Spending Clause limits also account for the Tenth Amendment, which limits Congress's legislative power vis-a-vis the states, along with other principles of federalism and state sovereignty reflected in the Constitution's text and structure.53 This reason may explain why Spending Clause cases frequently refer to Congress's obligations when imposing conditions on states in exchange for federal funding. Still, the Court has not confined these principles to federal funding arrangements with states and has applied at least one of these limits, clear notice, to conditions on funding to private entities.54 At the same time, some lower courts have questioned whether the anti-coercion doctrine—a direct outgrowth of a long-standing federalism principle—applies when Congress is offering conditional funding to private entities.55
The clear notice principle requires conditions on federal funding to be unambiguous and prospective so that potential recipients have an opportunity to knowingly and voluntarily accept or reject the terms of the funding arrangement.56 The Supreme Court has often referred to Spending Clause legislation as akin to a "contract" between the federal government and a funding recipient.57 The reasoning behind the contract analogy—the need for a clear offer and knowing acceptance—does not depend on the recipient being a state, even if the rule is often framed in terms of federal-state funding arrangements.58 Thus, the clear notice principle applies regardless of the governmental or nongovernmental status of the funding recipient, as confirmed by Supreme Court cases invoking this limit in Spending Clause challenges by private entities.59
The seminal case on the clear notice standard is Pennhurst State School and Hospital v. Halderman.60 In Pennhurst, the Supreme Court considered a statute in which Congress provided funding for states to provide services to individuals with developmental disabilities.61 As part of the plan, states had to agree to "protect[]" the "rights" of persons with developmental disabilities "consistent with" the findings section of the act.62 The statute also required states to take certain other actions "as a condition" of receiving assistance.63 The parties disagreed, however, on the scope of the conditions. A findings section in the statute provided that persons with developmental disabilities "have a right to appropriate treatment" and that such treatment "should be provided in the setting that is least restrictive of the person's personal liberty."64 The case presented the question of whether these findings stated a condition on the federal funding.
While considering this question, the Court examined "the possible sources of Congress'[s] power to legislate," including the Spending Clause.65 The Court likened spending laws with conditions to a contract:
[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it.66
The Court held that "if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously."67 Applying this rule, the Court concluded that "Congress fell well short of providing clear notice to the States" that accepting funding under the act required compliance with the statute's findings section.68 Viewing this section in the context of the statute as a whole, the Court reasoned that the findings reflected "general statements of federal policy, not newly created legal duties."69 By contrast, the Court observed, in other parts of the statute Congress used "clear terms" like "condition" when it intended to impose a requirement on a state in exchange for federal funding.70 The Court further observed that the statute lacked the typical method of enforcing a funding condition because it did not authorize the federal government to withhold funds for noncompliance with the findings section.71 Accordingly, the Court concluded that the statute did not require states to provide for "appropriate treatment" in the "least restrictive" environment in exchange for federal funds.72
The Pennhurst Court framed the clear notice principle as a "rule of statutory construction"—that is, in interpreting funding legislation, a reader should look for a clear expression of Congress's intent to impose a condition before concluding that the statute imposes one.73 Additionally, the Court suggested that the "appropriate treatment" provision would violate the Constitution if it were a condition because it provided inadequate notice to the states of their obligations in accepting federal funds.74 It is evident from the Court's Pennhurst discussion and the application of the clear notice principle in subsequent cases that clear notice is a constitutional requirement, not just an interpretive aid in construing statutory language.75
The clear notice requirement applies not only to the condition itself, but also to the remedy that a law imposes for a state's violation of that condition.76 The Pennhurst Court observed that "the typical remedy for state noncompliance with federally imposed conditions" is "action by the Federal Government to terminate funds to the State."77 In practice, termination of funds may not be the agency's first step. Depending on the statutes and regulations governing the funding at issue, an agency may have a range of options to respond to noncompliance, from providing the recipient with notice and an opportunity to correct a violation, to seeking recoupment of federal funding or debarment of the funding recipient.78 Stated differently, then, the takeaway from Pennhurst is that the presumptive remedy for violation of a funding condition is agency action related to the funding itself or the recipient's eligibility for future funding. In Pennhurst and subsequent decisions, the Supreme Court has cautioned against inferring other types of remedies, such as a private right of action to sue a funding recipient for monetary damages.79 Because Spending Clause legislation is in the nature of a contract, "atypical" remedies require clear notice to, and knowing and voluntary consent from, the person who might be held liable for violating a funding condition.80
Supreme Court decisions applying the clear notice principle in disputes over available remedies have generally fallen into three categories. The first category involves cases where the plaintiff alleges that violation of a funding condition gives rise to a private cause of action—that is, a right to sue the violator in court to recover monetary damages or obtain injunctive relief.81 The second category involves cases where parties dispute the scope of liability or remedies under an available private right of action, including who can be held personally liable. The third category involves cases where the plaintiff argues that a state has waived its sovereign immunity (i.e., agreed to answer private lawsuits) for violations of a funding condition.
Although funding repercussions are the presumptive remedy for funding condition violations,82 Congress may create a private right of action against funding recipients through express statutory language.83 In the absence of express text, courts do not readily infer the availability of such an action. Instead, courts ask, first, whether Congress intended to create a private right, and second, whether Congress intended to create a private remedy.84
To decide whether Congress has created a private right, the Supreme Court has instructed lower courts to consider whether the statute contains clear "'rights-creating' language" and is focused on the individuals Congress aims to protect rather than the parties Congress seeks to regulate.85 It is not sufficient, the Court has said, for a statute to merely "benefit or protect" the interests of certain persons; it must have "'an unmistakable focus'" on individuals like the plaintiff."86 Congress must "'speak[] with a clear voice,' and manifest[] an 'unambiguous' intent to confer individual rights."87
In two of the three cases applying this "demanding" standard, the Supreme Court concluded that the statutes at issue did not create individual federal rights.88 In Gonzaga University v. Doe, the Court considered whether funding conditions in the Family Educational Rights and Privacy Act of 1974 (FERPA) would allow a student to sue a private university for the unauthorized release of his education records.89 FERPA provides that "[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records . . . of students without the written consent of their parents[.]"90 In the Court's view, there was "no question" that the statute "fail[ed] to confer enforceable rights."91 For one, the Court reasoned, FERPA "lack[ed] the sort of 'rights-creating' language" present in other laws, such as Titles VI and IX,92 which state that "no person shall be subjected to discrimination."93 Instead, the Court observed, "FERPA's provisions speak only to the Secretary of Education, directing that 'no funds shall be made available'" to an institution with a noncompliant policy, and thus lacked a focus on individual students' interests.94
The Court observed a similar lack of focus on individual rights with respect to the Medicaid condition at issue in Medina v. Planned Parenthood South Atlantic.95 The condition at issue required states receiving Medicaid funding to "ensure that 'any individual eligible for medical assistance . . . may obtain' it 'from any [provider] qualified to perform the service . . . who undertakes to provide' it."96 The Court reasoned that while "this provision seeks to benefit both providers and patients," it lacked "clear and unambiguous 'rights-creating language.'"97 The Court found it relevant, too, that the statute included "various exceptions" to the requirement, allowing states to exclude certain providers from their Medicaid programs, because it doubted Congress would simultaneously create "an individually enforceable right" and allow states to "control its scope."98
By comparison, in Health and Hospital Corporation of Marion County v. Talevski, the Court ruled that the Federal Nursing Home Reform Act (FNHRA) gave nursing home residents enforceable rights "to be free from unnecessary physical or chemical restraints and to be discharged or transferred only when certain preconditions are satisfied."99 Applying "traditional tools of statutory construction," the Court observed that both the text and the headings of the applicable provisions referred to residents and their rights.100 For example, the provision requiring a funded nursing facility to "protect and promote the rights of each resident," including the "right to be free from . . . any physical or chemical restraints imposed for purposes of discipline or convenience," appeared in a subsection entitled "[r]equirements relating to residents' rights."101 FNHRA's provisions thus "use clear 'rights-creating language,' speak 'in terms of the persons benefited,' and have an 'unmistakable focus on the benefited class.'"102
In addition to demonstrating a federal right, a plaintiff seeking to sue a funding recipient in federal court must point to a corresponding remedy that authorizes the lawsuit.103 Since the Civil Rights Act of 1871, a federal statute commonly known as "Section 1983" has supplied the remedy part of the equation in some circumstances.104 Section 1983 "allows private parties to sue state actors who violate their 'rights' under 'the Constitution and laws' of the United States."105 The "laws" actionable under Section 1983 can include Spending Clause statutes (again, if those statutes create clear individual federal rights).106 In cases involving the interplay between funding conditions and Section 1983, the Supreme Court has also considered whether the statutory scheme evinces Congress's intent to foreclose the use of Section 1983 as a remedy. A statute could displace Section 1983 if it includes explicit language barring suits under Section 1983 or its text and context suggest that a different "remedial scheme" is "the exclusive avenue through which a plaintiff may assert [his] claims."107
In the absence of such express language, the Court has examined whether allowing a plaintiff to sue under Section 1983 would be "incompatible" with the enforcement mechanisms described in the statute. In Talevski, the Court concluded that nothing in the text or context of FNHRA indicated that Congress intended to foreclose Section 1983 as a potential remedy for nursing home residents.108 The Court also found "no incompatibility" between private actions under Section 1983 and FNHRA's "administrative processes concerning inspection of covered nursing facilities and accountability for noncompliant facilities."109 The Court explained that the mere existence of a "comprehensive" or "detailed" enforcement scheme is not enough to displace Section 1983 as an available remedy.110 The Court contrasted the potential for complementary enforcement mechanisms with the hypothetical of "an express private judicial right of action" containing different procedural requirements or remedies that might be frustrated by allowing parallel suits under Section 1983.111
In some cases involving privately enforceable rights, the interested parties dispute the scope of liability if a court were to find a violation of that right. They may ask a court to resolve, for example, whether the law allows for compensatory damages, punitive damages, or certain costs or fees.112 The Supreme Court has held that funding recipients' potential liability, like the condition itself, "must be set out 'unambiguously.'"113 The reviewing court must "view the [statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [the statute's] funds and the obligations that go with those funds."114 The relevant consideration is "whether such a state official would clearly understand" that the state might incur the type of liability in question in the event of a statutory violation.115 In other words, the funding recipient must know "what sort of penalties might be on the table."116
For some statutes enacted before Pennhurst, the Court has recognized remedies that were not explicitly set out in the statutory text.117 Following Pennhurst, however, the Court has demanded more textual clarity. For example, Arlington Central School District Board of Education v. Murphy involved the Individuals with Disabilities Education Act (IDEA), a post-Pennhurst statute that expressly provided for a private right of action.118 The statute authorized the award of "reasonable attorneys' fees as part of the costs" to a prevailing party.119 The Court held that the IDEA did not provide "clear notice" to the states that, by accepting funds under the IDEA, they might be liable for the prevailing parties' expert fees.120 The Court reasoned that neither the statutory terms "attorneys' fees" nor "costs" clearly encompassed expert fees.121 In the Court's view, a contrary statement of congressional intent in the legislative record did not supply the requisite notice to funding recipients. Specifically, the conference committee report for the IDEA stated: "The conferees intend that the term 'attorneys' fees as part of the costs' include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the . . . case."122 "Whatever weight this legislative history would merit in another context," the Court reasoned, "it is not sufficient here."123 The Court stated that "[i]n a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds."124
While the foregoing cases focused on funding recipients' knowledge of the scope of liability, the Supreme Court has also emphasized the need for recipients to voluntarily consent to exposure to penalties other than funding repercussions. In Landor, discussed above, the Court held that the plaintiff could not seek to hold individual prison officers personally liable for money damages under RLUIPA, because unlike their state employer, the officers had not "entered any agreement with the federal government" or "voluntarily and knowingly consented to answer private suits" under the statute.125 The Court suggested that Congress could have used its Spending Clause power to reach individual correctional officers by, for example, incentivizing federally funded prisons to require their employees "to enter separate contracts with the federal government consenting to answer suits" under the statute.126 Under any Spending Clause approach, the Court emphasized, "voluntary and knowing consent is key."127
The Supreme Court has held that under the Constitution, states retain sovereign immunity—that is, immunity from lawsuits filed by private citizens.128 The Eleventh Amendment is an example of this principle,129 providing that courts may not entertain federal actions "commenced or prosecuted against one of the United States" by private citizens.130 Although individual states are free to waive their sovereign immunity and consent to certain types of lawsuits, Congress can only abrogate—or remove—a state's sovereign immunity under limited circumstances.131
If Congress cannot abrogate the states' sovereign immunity for a particular purpose, it may use its spending power to incentivize states to waive their own immunity. Specifically, Congress may condition the receipt of federal funds on a state's consent to be sued in certain types of actions.132 A "State's consent to suit must be 'unequivocally expressed' in the text of the relevant statute," consistent with Pennhurst's clear notice standard.133
An unambiguous waiver provision addresses the forum where states may be sued. It is well settled that "the mere receipt of federal funds cannot establish that a State has consented to suit in federal court."134 A state also does not "necessarily consent[] to suit in federal court by participating in programs funded under the statute."135 Additionally, a state's "general waiver of sovereign immunity" is insufficient to subject that state to a private action in federal court, because the state might be consenting only to answer suits by private citizens in state court.136 An unequivocal waiver in the Spending Clause context informs states that by accepting federal funds, they agree to be sued in federal court.137
Congress need not employ "magic words" to effect such a waiver.138 Lower court cases suggest that words such as "condition" or "waiver" are not required if other statutory language elucidates the connection between accepting funding and exposure to private lawsuits in federal court.139 For example, Section 1003 of the Rehabilitation Act provides that a "State shall not be immune under the Eleventh Amendment of the Constitution . . . from suit in Federal court for a violation of" certain enumerated statutes, including Title VI and Title IX.140 Courts have held that, despite the absence of the words "condition" or "waiver," "Congress succeeded in its effort to codify a clear, unambiguous, and unequivocal condition of waiver of Eleventh Amendment immunity" in Section 1003—at least for Spending Clause statutes expressly named in this provision.141
The provision that seeks to effect a waiver of state sovereign immunity must also provide a clear statement of the type of liability that a state might face in a private lawsuit. For example, "to sustain a claim that [a state] is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims."142 In the 2011 case Sossamon v. Texas, the Court considered whether an inmate at a state correctional facility could sue the State of Texas, a federal funding recipient, for money damages for alleged violations of RLUIPA.143 RLUIPA authorizes a private right of action for an aggrieved inmate to "obtain appropriate relief against a government."144 The Supreme Court concluded that "RLUIPA's authorization of 'appropriate relief against a government'" fell short of "the unequivocal expression of state consent that our precedents require."145 The Court described the language as "open-ended and ambiguous about what types of relief it includes."146 Because of this ambiguity, the Court applied the background rule that waivers of sovereign immunity are construed narrowly, in favor of the sovereign, and thus did not allow actions for damages.147
The Court in Sossamon also rejected the argument that a "residual clause" in Section 1003 of the Rehabilitation Act supplied the requisite notice. That clause appeared to extend Section 1003's waiver of Eleventh Amendment immunity for specified Spending Clause statutes to "the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance."148 The Court in Sossamon seemed to question whether such a "residual clause . . . could constitute an unequivocal textual waiver,"149 ultimately deciding that Section 1003 did not clearly extend to RLUIPA because "a State might reasonably conclude that the clause covers only provisions using the term 'discrimination'" (which RLUIPA does not).150
Thus, subjecting states to private lawsuits under a spending statute appears to require a clear and unequivocal statement in the statutory text to inform states that waiving their immunity to lawsuits in federal court is a condition of receiving federal funding, and states will be subject only to the types of liability in those lawsuits that are clearly encompassed in the statutory waiver.
When determining whether a particular funding condition satisfies the clear notice requirement, courts may disagree about what sources they can consider. Cases such as Arlington Central School District Board of Education suggest that statutory text provides the best indication of the presence or absence of clear notice, particularly for statutes enacted after Pennhurst.151 Still, the Supreme Court has not foreclosed the possibility that an agency regulation, a judicial decision, or evidence of past practice could place a prospective funding recipient on notice of its obligations. In Jackson v. Birmingham Board of Education, the Supreme Court listed three reasons why states were on notice that they could be liable in a private Title IX action for intentional retaliation.152 First, the Court observed that its decisions since the late 1970s apprised states that they could be liable for "diverse forms of intentional sex discrimination" in violation of Title IX.153 Second, "regulations implementing Title IX clearly prohibit[ed] retaliation and ha[d] been on the books for nearly 30 years."154 Third, appellate courts had ruled that Title IX covered retaliation at the time of the conduct in question in the case.155 In these circumstances, the Court concluded, the school board "could not have realistically supposed that . . . it remained free to retaliate against those who reported sex discrimination."156
While the Court decided Jackson in 2005, the case involved an implied private right of action first recognized in 1979—before Pennhurst's clear notice requirement.157 Pennhurst and its progeny marked a "shift in th[e] Court's approach" away from recognizing implied rights and remedies and toward requiring "'clear and unambiguous' notice" that a spending statute "creates a personally enforceable right."158 Accordingly, it is uncertain whether the Court's reasoning in Jackson—suggesting that a funding recipient might be on notice of its potential liability under a pre-Pennhurst statute based on sources outside of the statute's text—would extend to Spending Clause legislation enacted after Pennhurst.
Lower courts appear to be divided over the question of whether clear notice must come directly from a statute or can be supplied through other sources, such as agency regulations or guidance. From 2022 to 2024, three federal courts of appeals held that a funding condition in the American Rescue Plan Act (ARPA) violated the clear notice principle despite agency efforts to clarify the condition.159 This "offset" condition prohibited states from using ARPA funds to "directly or indirectly offset" reductions in state tax revenue.160 All three courts reasoned that the offset provision in the statute was ambiguous because Congress had not defined what it meant to "indirectly" offset tax revenue and the statute lacked a "baseline" against which to measure any reduction in revenue.161 However, the reviewing courts gave different weight to agency regulations issued to clarify these standards. The Fifth Circuit rejected the government's argument that "Treasury's subsequent regulations" cleared up any ambiguity, reasoning that a "statutory ambiguity" cannot be "vitiated by regulatory enactments."162 The Eleventh Circuit, in contrast, indicated that regulations can sometimes "fill in gaps that may exist in a spending condition," but that the ARPA did not provide an "ascertainable condition" for Treasury to clarify.163 In a different vein, the Sixth Circuit seemed to focus on the significance of tax policy, reasoning that "in these particular circumstances"—where "control over taxation is a core aspect of state sovereignty" and the condition affects the "balance of power between the Federal Government and the States"—Congress itself had to clarify the condition.164
Thus, it is unclear whether or under what circumstances sources outside of the statutory text can supply the requisite clear notice, and different jurisdictions might approach these questions differently. As a result, Congress might opt to address questions about a funding condition's scope and the consequences of noncompliance in statutory text to mitigate potential ambiguity.
A second judicially recognized limit on Congress's spending power is whether a funding condition is related to a purpose of the funded program or activity. The relatedness requirement reflects the structural decision of the Framers and ratifiers of the Constitution to vest Congress with specific, enumerated powers. The Supreme Court has reasoned that without a relatedness requirement, "the spending power could render academic the Constitution's other grants and limits of federal authority."165 In other words, the Spending Clause already allows Congress to fund legislative policies that it could not enact directly because they fall outside of its enumerated powers.166 Allowing Congress to impose conditions untethered to the purpose of the spending legislation could enlarge Congress's powers to a degree that encroaches on powers that the Tenth Amendment reserves to the states.167 These structural considerations suggest that the relatedness principle, while grounded in federalism concerns, applies regardless of whether Congress seeks to leverage its spending power to change state policies or to influence private behavior.
Analysis of the relatedness requirement in Supreme Court cases is sparse. In South Dakota v. Dole, the Court suggested that "federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs'" but found no relatedness problem in that case.168 The Court held that Congress permissibly conditioned a percentage of federal highway funds on states' adoption of a national minimum drinking age because the condition was "directly related" to the federal government's interest in highway safety.169 The Dole Court did not need to examine the precise interests served by the individual highway grants tied to the condition, reasoning that a minimum drinking age related to "one of the main purposes for which highway funds are expended—safe interstate travel" and that "varying drinking ages among the States" had "frustrated" this purpose.170
In practice, the relatedness requirement appears to be a "low bar."171 The Supreme Court has never struck down a spending condition as insufficiently related to the purpose of the spending.172 Appellate courts have not interpreted the relatedness standard to be particularly demanding.173 For example, the Ninth Circuit has employed the Supreme Court's description of the relatedness requirement in New York v. United States (decided five years after Dole), in concluding that "the conditions need only 'bear some relationship to the purpose of the federal spending.'"174 Other courts, such as the Tenth Circuit, have described the "required degree" of connection between the condition and the federal interest in the funded program as "one of reasonableness or minimum rationality"—a low standard in legal terms.175 At least one Supreme Court Justice, Justice Thomas, may view the relatedness requirement in a potentially more stringent way—at least where the government has invoked the Necessary and Proper Clause—suggesting that "there must be 'some obvious, simple, and direct relation' between the condition and the expenditure of the funds."176 The Supreme Court did not purport to alter the relatedness standard in Landor,177 however, and the Sixth Circuit observed in a 2005 decision involving RLUIPA that "Dole remains the controlling law" on the question of relatedness.178
Most of the cases in which courts have identified a relatedness defect have involved conditions imposed by a federal agency, where separation-of-powers concerns were also at play.179 According to the courts that issued these rulings, some of the conditions at issue lacked a "reasonable relationship" to the funded activity,180 while others conflicted with statutory requirements or purposes of the funded program.181 In other cases where courts found a relatedness problem, noncompliance with a particular condition could result in the loss of all funding disbursed by the agency, regardless of the relationship between any particular program or funding stream and the condition in question.182
Thus, both as framed by the Supreme Court and as applied by lower courts, the relatedness requirement appears to provide a relatively modest limit on Congress's authority to condition federal funding. Spending conditions that bear a reasonable relationship to the goals or functions of the funded program or activity would likely satisfy this standard, whereas conditions that conflict with applicable statutory requirements or place separate funding streams at risk might not satisfy the relatedness limit.
The third judicially recognized limit that could arise in a Spending Clause challenge to a funding condition is whether the condition is unconstitutionally coercive. To comply with the anti-coercion limit, which stems from federalism principles, Congress can offer states "powerful incentive[s]" to carry out federal policies as long as states remain free to opt out by declining the federal funding.183 Congress may not, however, "compel" states to adopt federal policies due to a related constitutional doctrine called anti-commandeering.184
The anti-commandeering doctrine reflects "a fundamental structural decision" in the Constitution—"the decision to withhold from Congress the power to issue orders directly to the States."185 Under the U.S. system of "dual sovereignty," both the federal government and the states "wield sovereign powers."186 The Constitution allocates powers between the federal and state governments in a number of ways. The Supremacy Clause of Article VI provides that federal law "shall be the supreme Law of the Land," giving Congress the power to preempt state law.187 At the same time, Congress's legislative authority is limited to powers enumerated in the Constitution.188 The Tenth Amendment provides that all other legislative powers are "reserved to the States."189 The Supreme Court developed the anti-commandeering doctrine to help preserve this structure by prohibiting Congress from commanding states to legislate or regulate—or to refrain from legislating or regulating—on the federal government's behalf.190
In the spending context, these same considerations undergird the anti-coercion analysis,191 which essentially asks whether a state has a "legitimate choice" about whether to accept the federal conditions.192 As the Supreme Court recognized in South Dakota v. Dole, sometimes "the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'"193 On the facts of that case, the Dole Court concluded that Congress's incentive for states to adopt the national minimum drinking age was "relatively mild encouragement."194 In Dole, non-acceptance would cost a state "a relatively small percentage of certain federal highway funds"—in South Dakota's case, "5% of the funds otherwise obtainable under specified highway grant programs."195
While the Supreme Court recognized the potential for coercion in Dole, it did not strike down a spending condition on anti-coercion grounds until its 2012 decision in National Federation of Independent Business (NFIB) v. Sebelius.196 In that case, seven Justices, across two different opinions, concluded that Congress violated the anti-coercion principle by conditioning all of a state's Medicaid funds on its acceptance of Medicaid expansion in the Affordable Care Act.197 Chief Justice Roberts authored a plurality opinion on the Spending Clause analysis on behalf of himself and Justices Breyer and Kagan, while four Justices—Justices Scalia, Kennedy, Thomas, and Alito—discussed their reasoning in a joint dissent.198 Because the plurality concluded that the condition was invalid on narrower grounds than the joint dissent, several appellate courts have described Chief Justice Roberts's opinion as precedential.199
In concluding that the condition in NFIB was unconstitutionally coercive, the Chief Justice highlighted the states' dependence on existing Medicaid funding and the expansion's resemblance, in the plurality's view, to a "new health care program."200 The plurality observed that federal Medicaid funds had become "a substantial part of state budgets," comprising more than "10 percent of most States' total revenue."201 The plurality indicated, by comparison, that the highway funds at issue in Dole constituted less than 0.5% of South Dakota's budget.202 Echoing the clear notice requirement, the plurality also reasoned that Congress's spending power to enact the Medicaid program did not permit it to "surpris[e] participating States with post-acceptance or 'retroactive' conditions."203
NFIB remains the only case in which the Supreme Court has struck down a funding condition as unconstitutionally coercive. Accordingly, case law on the anti-coercion principle is limited, and its applications have occurred primarily in the lower courts.204 Judges have used the facts and reasoning of Dole and NFIB as guideposts in the anti-coercion analysis, asking (1) whether the challenged condition attached to existing funding and marked a change in "degree" or "kind" for the program at issue;205 (2) whether the condition took "the form of threats to terminate other significant independent grants";206 and (3) what percentage of a state's budget was at risk if the state did not comply with the condition.207 Courts have sometimes adapted the last factor for challenges by localities or public institutions by examining the percentage of federal funding that a particular recipient could lose,208 or how the funding loss would affect the entity's overall budget or operations for the federally funded program or activity at issue.209 Additionally, some lower courts have questioned whether the anti-coercion limit applies to conditions on how states use funds, as opposed to conditions designed to induce states to make policy changes—something that Congress could not command directly because of the anti-commandeering doctrine.210 For example, the Fifth Circuit reasoned that a "direct restriction on how a state uses federal funds" is not coercive, because it simply "'ensures that the funds are spent according to [Congress's] view of the general Welfare.'"211
Because the anti-coercion doctrine has its roots in federalism principles, at least one federal court has questioned whether a private party can raise an anti-coercion claim. In that case, private, long-term care facilities challenged certain Medicare and Medicaid requirements involving arbitration agreements with residents.212 In a ruling affirmed on other grounds, the district court concluded that the plaintiffs' asserted dependence on Medicare and Medicaid funding was of their own making, stating that "Courts of Appeals have held time and time again that the participation of private entities in Medicare and Medicaid is always voluntary."213 The district court also observed that "no part" of the NFIB decision "touched on the government's power to place conditions on private entities."214 On appeal, the Eighth Circuit found it unnecessary to decide the question but appeared to agree with the district court that the anti-coercion discussion in NFIB concerned "the federal government's limited constitutional authority under the Spending Clause to regulate the states, not a federal agency's ability to regulate [private] facilities' use of federal funding."215
Thus, though the anti-coercion doctrine is a recognized limit on Congress's power to condition federal funding to state recipients, the line between permissible incentive and unconstitutional coercion remains blurry. Questions also remain as to the doctrine's application to conditional funding to private entities and conditions directed at the use of funds rather than the policies or conduct of the recipient.
A spending condition that meets the clear notice, relatedness, and anti-coercion tests is constitutional unless it violates some other "independent constitutional bar."216 There are two general formulations of the independent constitutional bar principle. Additionally, arguments about the constitutionality of a funding condition often implicate a cross-cutting legal doctrine called the "unconstitutional conditions" doctrine.217
As articulated in South Dakota v. Dole, a funding condition runs afoul of an independent constitutional bar when it would require or encourage the recipient to violate the Constitution.218 To use an example from Dole, if Congress were to condition funding for state prisons on the use of a "cruel and unusual punishment[]," the Eighth Amendment would independently bar such a condition because it prohibits states from using such forms of punishment.219 The Supreme Court considered—and ultimately rejected—an independent constitutional bar argument of this nature in United States v. American Library Association.220 In the Children's Internet Protection Act, Congress had required public libraries receiving federal assistance for internet and information services to install filtering software on library computers to block patrons' access to pornographic websites and other materials deemed "harmful to minors."221 Challengers to the law contended that this condition required public libraries—which are governmental entities—to violate the First Amendment rights of library users.222 Six Justices, for different reasons, concluded that the law did not induce the libraries to violate their patrons' First Amendment rights, and the condition for receiving federal funds was therefore within Congress's power.223
Some courts and litigants appear to take a broader view of the independent constitutional bar limitation than the Dole formulation, treating it as a catchall for analyzing not only whether a condition induces the recipient to violate the Constitution, but also whether the condition itself exceeds Congress's authority. For example, according to the Eighth Circuit, this principle "requires a consideration of whether other constitutional provisions prohibit these particular conditions on federal funding."224 States have sometimes invoked the "independent constitutional bar" concept to raise federalism-based objections, such as the argument that a funding condition violates states' rights under the Tenth Amendment.225 However, because federalism considerations are already embedded in the clear notice, relatedness, and anti-coercion principles,226 other courts have concluded that the Tenth Amendment "does not apply" to otherwise "valid spending legislation" that clears these initial hurdles.227 Still other courts have analyzed Tenth Amendment objections as separate constitutional claims.228
In sum, under the Dole formulation, the independent constitutional bar principle concerns conditions that induce a state or other governmental entity to violate the Constitution.229 Under a broader formulation used by some courts, and the closely related unconstitutional conditions doctrine discussed below, Congress also may not use its spending power in ways that violate a private recipient's constitutional rights.230 Thus, a relevant consideration in formulating any funding condition—whether the intended recipients are public or private entities—is whether the condition might violate, or cause another governmental entity to violate, a constitutional provision other than the Spending Clause itself.
The unconstitutional conditions doctrine "examines the extent to which government benefits may be conditioned or distributed in ways that burden constitutional rights or principles."231 A core principle of this doctrine is that once the government has established a benefit, it may not deny that benefit to a person "on a basis that infringes his constitutionally protected interests."232
The unconstitutional conditions doctrine is not unique to the funding context. In contrast to the four limits discussed above, the doctrine has developed as a constraint on Congress's authority generally, rather than the Spending Clause alone, and it has generated a large body of case law that touches on a variety of Congress's powers.233 Still, the unconstitutional conditions doctrine frequently arises in cases involving funding conditions, especially conditions that restrict or compel speech. In such circumstances, the Supreme Court generally has upheld conditions that "define the limits of the government spending program—those that specify the activities Congress wants to subsidize," but it has applied heightened scrutiny to conditions that "seek to leverage funding" in a way that burdens constitutional rights "outside the contours of the program itself."234
Cases applying this test illustrate why the distinction is "not always self-evident."235 In Rust v. Sullivan, the Court upheld regulations prohibiting recipients of funding for family planning projects under Title X of the Public Health Service Act from providing abortion services, counseling, or referrals, or advocating for abortion through their written materials, speakers, or lobbying efforts.236 Grantees had to maintain physical and financial separation, as defined in the regulations, between the Title X project and any prohibited abortion-related activities.237 In the Court's view, the regulations did not amount to "suppress[ion]" of abortion-related expression, but instead prohibited "a project grantee or its employees from engaging in activities outside of the project's scope," consistent with Title X's focus on family planning rather than prenatal care.238
The Court also upheld a statutory funding condition against an unconstitutional conditions challenge in American Library Association.239 As previously described, that case involved a requirement that public libraries implement filtering software in exchange for funds to improve internet services.240 The Court concluded that the condition did not violate the libraries' First Amendment rights.241 A plurality of the Court reasoned that, as in Rust, the condition defined the limits of the funded program.242 By blocking online materials that libraries traditionally would have excluded from their print collections, the Court reasoned, filtering software helps libraries to "fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes."243
By contrast, the Court found it unconstitutional for Congress to require the recipients of funding for global HIV/AIDS programs to have "a policy explicitly opposing prostitution and sex trafficking."244 The Court reasoned that the condition exceeded the program's scope because it forced grantees to "adopt—as their own—the Government's view on an issue of public concern," which necessarily required fidelity to that view inside and outside of the program.245 It did not matter that the federal government allowed funding recipients to work with organizations that did not have the specified policy so long as the recipients retained "objective integrity and independence from any affiliated organization."246 The Court reasoned that this approach required the recipient to either distance itself from its affiliate and the affiliate's message, or clearly identify with its affiliate while espousing the government's message "only at the price of evident hypocrisy."247
Thus, the unconstitutional conditions doctrine serves as a check on Congress's authority to condition federal funding in a way that burdens constitutional rights outside the contours of the government spending program at issue, though where that line is drawn is not always clear.
In many of the cases discussed above, Congress has imposed a spending condition by statute, and courts have considered whether that condition is constitutional. A spending condition might also come from the executive branch—for example, from a federal agency administering a grant program. If the condition is challenged in a lawsuit, a court might consider whether the executive branch has statutory authority from Congress to impose the condition, and if so, whether that condition is consistent with federal statutes and with the Constitution. Some cases also involve threshold questions about the court's jurisdiction.
Litigants challenging an agency's decision to adopt or enforce a particular funding condition often bring claims under the APA.248 Pursuant to the APA, a reviewing court can set aside federal agency action that is "in excess of statutory jurisdiction [or] authority," "contrary to constitutional right," or "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."249 The APA does not authorize money damages and does not authorize a court to "grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought."250 The Supreme Court has interpreted this provision to preclude a federal district court from hearing APA claims involving grant terminations where the plaintiff seeks "to enforce a contractual obligation to pay money."251 According to the Court, a federal statute called the Tucker Act divests district courts of APA jurisdiction in these circumstances, because "the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on 'any express or implied contract with the United States.'"252
The Supreme Court addressed this jurisdictional issue in two rulings on its interim (i.e., nonmerits) docket.253 Neither decision squarely addresses whether or in what circumstances a district court may hear an APA challenge to a funding condition—though the views of individual Justices provide insight into the question. In the first case, Department of Education v. California, a federal district court had, on APA grounds, ordered the government to resume payments under certain previously terminated education grants.254 In a per curiam (i.e., unsigned) order, the Supreme Court concluded that the government was "likely to succeed in showing the District Court lacked jurisdiction to order the payment of money under the APA," because its order amounted to "'enforc[ing] a contractual obligation to pay money'"—a matter that the Tucker Act assigns to the Court of Federal Claims.255
The second case, National Institutes of Health v. American Public Health Ass'n (APHA), involved the federal government's termination of certain research grants.256 A federal district court had vacated the grant terminations and certain agency directives on APA grounds.257 In an emergency application, the government asked the Supreme Court to stay the district court's orders while it appealed those rulings. With four Justices in favor of granting the application in full and four that would have denied it in full, the Court agreed to stay only the portions of the district court's orders setting aside the grant terminations.258 In a concurrence that some courts have come to view as the "controlling" rationale,259 Justice Barrett posited that "the District Court likely lacked jurisdiction to hear challenges to the grant terminations, which belong in the Court of Federal Claims (CFC)," but likely had jurisdiction to hear the plaintiff's APA challenge to "internal agency guidance."260 Justice Barrett reasoned that discussion of "internal policies related to grants" in agency guidance "does not transform a challenge to that guidance into a claim 'founded upon' contract that only the CFC can hear."261 Four Justices—Chief Justice Roberts and Justices Sotomayor, Kagan, and Jackson—issued a partial concurrence reasoning that the district court had jurisdiction to set aside the challenged agency directives as well as the grant terminations themselves.262 They reasoned that vacating the directives "has prospective and generally applicable implications beyond the reinstatement of specific grants" and that the government did not contest that the grant terminations resulted from the directives.263 Justices Gorsuch and Kavanaugh, who thought the entire case should have been routed to the CFC, believed that the Court's interim ruling in Department of Education v. California addressed the jurisdictional question.264 They remarked that "even probabilistic holdings," such as the Court's "top-line conclusion" about APA jurisdiction in that case, "must 'inform how a [lower] court' proceeds 'in like cases.'''265
Following these decisions, some lower courts expressed uncertainty over the scope of APA jurisdiction in challenges to agency actions involving grants.266 The California action resulted in the "two-track litigation" described by Justice Barrett in her APHA concurrence.267 Specifically, the federal district court in California held that it lacked jurisdiction over "retrospective" claims seeking the reinstatement of terminated grants but had jurisdiction over "prospective" claims asking the court to set aside certain agency actions as procedurally defective under the APA or unconstitutional.268 In a similar vein, the First Circuit upheld a district court's award of prospective injunctive relief, even though it might "result in the disbursement of funds," while vacating parts of the order directing the agency to provide previously awarded funding.269 Several courts confronted with these types of jurisdictional questions after California and APHA have continued to apply a "longstanding test"270 developed by the D.C. Circuit that examines both "the source of the rights upon which the plaintiff bases its claims" and "the type of relief sought," finding that standard compatible with the Supreme Court's interim rulings.271
Because Congress alone holds the "power of the purse," the Constitution does not authorize the executive branch to unilaterally spend or impose conditions on federal funding.272 To do so would violate the constitutional separation of powers.273 A funding condition from the executive branch can be constitutional only if Congress has "delegated authority" to the executive branch to impose that condition.274
Because an "agency that acts without statutory authority violates the [APA],"275 challenges to an agency's decision to adopt or enforce a particular funding condition often involve APA claims instead of, or in addition to, a separation-of-powers claim.276 Courts presented with both types of claims might resolve the challenge on statutory rather than constitutional grounds, sometimes as a matter of constitutional avoidance277—the principle that courts should refrain from adjudicating a constitutional question if it can be resolved on other, narrower grounds.278 Some case law has suggested, however, that when an agency imposes a spending condition that Congress has not authorized, it violates not only the underlying statute but also the Constitution.279
Questions regarding an agency's statutory authority to adopt a particular funding condition can involve complex questions of statutory interpretation, as illustrated by litigation involving immigration-related conditions in the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program. The Byrne JAG Program is "the primary source of federal criminal justice funding available to state and local governments."280 Administered by the Department of Justice (DOJ), the program provides federal grants to states and localities "to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice" in eleven program areas.281 While a statutorily prescribed formula dictates the amount of funding that each state receives, states still must apply for Byrne JAG funding.282 The application must include, among other items, a "certification, made in a form acceptable to the Attorney General" that "the applicant will comply with all provisions" of the Byrne JAG statute283 and "all other applicable Federal laws."284
The Byrne JAG cases discussed in this section concerned grant conditions that the Attorney General adopted for fiscal years 2017 and 2018.285 One of the challenged conditions—the certification condition—required grantees to certify their compliance with Title 8, Section 1373, of the U.S. Code.286 Section 1373 prohibits states and localities from restricting the exchange of information about an individual's citizenship or immigration status with federal immigration authorities.287 In the litigation, DOJ argued that the Byrne JAG statute authorized the condition because the statute itself requires applicants to certify compliance with "applicable Federal laws" and, in DOJ's view, Section 1373 was one such law.288
The First, Third, and Seventh Circuits disagreed, holding that DOJ's grant condition was inconsistent with the Byrne JAG statute.289 They construed "applicable Federal laws" to refer to laws that apply to Byrne JAG grant programs, rather than all laws that apply to Byrne JAG applicants.290 Because Section 1373 generally applied to state and local governments and officials without referencing grant programs or federal funding, the courts reasoned that it was not an "applicable" federal law.291 Accordingly, these three circuits held that the Attorney General exceeded his statutory authority in imposing the certification condition.292
One court, the Seventh Circuit, also characterized this as a constitutional violation. The Seventh Circuit expressly held that, because of the lack of statutory authorization, "the Attorney General's decision to attach the conditions to the FY2017 and FY2018 Byrne JAG grants violated the constitutional principle of separation of powers."293
In contrast, in a case brought by seven states and New York City, the Second Circuit held that the Attorney General neither exceeded his statutory authority nor violated the constitutional separation of powers by imposing the certification condition.294 The court reasoned that the Byrne JAG statute authorized the Attorney General to identify "other applicable Federal laws" for purposes of the compliance certification by mandating certification in a "form acceptable to the Attorney General."295 In the court's view, "form" embraced both format and content.296 The court also construed the phrase "applicable Federal laws" to refer to laws applying to the grant program and laws applying to the applicant.297 The court concluded that Section 1373 applied to the plaintiff-jurisdictions that had applied for Byrne JAG grants.298 Even if Congress did not make the condition explicit, therefore, DOJ's condition fell within the discretionary authority that Congress had given to DOJ to specify certification requirements for the Byrne JAG program.299
Although the plaintiff-jurisdictions initially sought the Supreme Court's review, the parties agreed to dismiss the petition after the DOJ "agreed to remove the challenged conditions, allowing" the plaintiffs "to access their withheld grant funds."300 While these lawsuits over the FY2017 and FY2018 Byrne JAG conditions have concluded, immigration-related conditions in other grant programs have generated additional litigation.301
Congress has several options to address agency-imposed conditions such as the immigration-related terms in the Byrne JAG funding discussed above. Congress has the option to authorize an agency to impose certain types of conditions for particular federal programs. The Supreme Court observed in Biden v. Missouri, for example, that "Congress authorized the Secretary [of HHS] to promulgate, as a condition of a facility's participation in the [Medicare or Medicaid] programs, such 'requirements as [the Secretary] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution" (e.g., hospital).302 Congress could also clarify, on a program-by-program or appropriation-by-appropriation basis, the executive branch's authority to require funding recipients to comply with statutory requirements that are not expressly identified in the relevant funding statutes. For example, if Congress were to seek to make compliance with Section 1373 an ongoing condition of Byrne JAG funding, it could amend the Byrne JAG statute to include an explicit condition to that effect. Congress would also have the option of providing appropriations for a program that condition a third party's receipt of those funds on their complying with one or more statutory requirements. For example, in 2025, Congress provided appropriations for certain purposes under the Byrne JAG program and expressly made compliance with Section 1373 a condition of eligibility to receive those funds.303 The constitutional limits discussed in the second part of this report (i.e., clear notice, relatedness, anti-coercion, and independent constitutional bar) would apply to each of these legislative approaches.304
If instead Congress were to seek to limit the executive branch's authority to impose funding conditions or interpret spending legislation to require compliance with other laws as a condition of funding, it could consider targeted amendments to address particular executive branch actions or interpretations. For example, Congress could amend language in the program statutes that the executive branch has relied upon to adopt funding conditions, such as the "all other applicable Federal laws" phrase in the Byrne JAG statute.305 Additionally or alternatively, Congress could specify the kinds of conditions the agency could implement or prohibit the agency from adopting conditions other than those explicitly identified in the relevant funding statutes.
Congress could also expand or limit the executive branch's authority to establish procedures for grantmaking agencies, including procedures related to implementing new funding conditions or addressing noncompliance with existing conditions.306
Even if an agency is statutorily authorized to adopt a particular funding condition or exercise discretion in interpreting its scope, that condition must still comply with the Spending Clause limits discussed in the second part of this report.307 Courts have vacated or enjoined the enforcement of funding conditions, as adopted or interpreted by the executive branch, that they have found to violate the clear notice,308 relatedness,309 anti-coercion,310 or independent constitutional bar311 principles. Thus, these four constitutional limits apply regardless of whether a funding condition originates in a statute, executive order, agency regulation, guidance document, or funding agreement.
Congress has broad constitutional authority to authorize spending for the general welfare. In exercising that authority, Congress may place conditions on federal funding given to states and private entities. Courts reviewing the constitutionality of a condition generally assess whether the condition (1) provides clear notice to the funding recipient so that the recipient can knowingly and voluntarily accept the terms of the funding arrangement, (2) is reasonably related to the program or funding stream it restricts, (3) is not coercive, and (4) does not induce the recipient to violate an independent constitutional bar. While many of these principles are rooted in federalism concerns, taken together, they cabin Congress's authority to condition funding to states and private entities. Statutory requirements concerning the funding at issue, and the degree of discretion Congress has accorded the executive branch, may affect the legality of any executive order, agency rule, or other executive branch action that imposes or enforces a spending condition.
| 1. |
U.S. Const. art. I, § 8, cl. 1; Libr. of Cong., Overview of Spending Clause, Constitution Annotated, https://constitution.congress.gov/browse/essay/artI-S8-C1-2-1/ALDE_00013356/ (last visited Sep. 24, 2026). |
| 2. |
5 U.S.C. §§ 551–59; 701–06. |
| 3. |
See United States v. Butler, 297 U.S. 1 (1936); Helvering v. Davis, 301 U.S. 619 (1937). |
| 4. |
See Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 216 (2022) ("Congress has broad power under the Spending Clause of the Constitution to set the terms on which it disburses federal funds."). |
| 5. |
See U.S. Const. art. I, § 8. |
| 6. |
Butler, 297 U.S. at 65. |
| 7. |
Id. |
| 8. |
See U.S. Const. art. I, § 8, cl. 3 (granting Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"); id. § 8, cl. 7 (granting Congress the power to "establish Post Offices and post Roads"). |
| 9. |
Butler, 297 U.S. at 65–66. |
| 10. |
Id. at 66. |
| 11. |
Id. |
| 12. |
Id. |
| 13. |
Id. (citation omitted). The Butler Court ultimately held that the challenged statute (the Agricultural Adjustment Act of 1933) violated the Tenth Amendment because it sought to regulate indirectly what Congress could not regulate directly: "subjects within the states' reserved jurisdiction." Id. at 74–75. The Court expressed concern that if it allowed the Spending Clause to be an end-run around other constitutional checks on Congress's power, Congress could "become the instrument for total subversion of the governmental powers reserved to the individual states." Id. at 75. |
| 14. |
Helvering v. Davis, 301 U.S. 619, 640 (1937) (quoting U.S. Const. art. I, § 8); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). |
| 15. |
South Dakota v. Dole, 483 U.S. 203, 207 (1987). |
| 16. |
Helvering, 301 U.S. 619. |
| 17. |
Id. at 634–36, 641. |
| 18. |
Id. at 640. |
| 19. |
Id. at 640–41 (quoting United States v. Butler, 297 U.S. 1, 67 (1936)). |
| 20. |
Id. at 641. |
| 21. |
See id. (recounting the "lessons" of the "purge of nation-wide calamity that began in 1929"); Libr. of Cong., Great Depression and World War II, 1929 to 1945: Overview, U.S. Hist. Primary Source Timeline, https://www.loc.gov/classroom-materials/united-states-history-primary-source-timeline/great-depression-and-world-war-ii-1929-1945/overview/ (last visited Oct. 5, 2026). |
| 22. |
Helvering, 301 U.S. at 642. |
| 23. |
Id. at 644. |
| 24. |
Id. at 645. |
| 25. |
See South Dakota v. Dole, 483 U.S. 203, 207 (1987) (describing the "first" limitation on Congress's spending power as originating from the "language of the Constitution itself: the exercise of the spending power must be in pursuit of 'the general welfare,'" but stating that in "considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress"). |
| 26. |
United States v. Am. Libr. Ass'n, 539 U.S. 194, 203 (2003) (plurality opinion); see also Dole, 483 U.S. at 206 ("Incident to this [spending] power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power 'to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.'" (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (plurality opinion))). |
| 27. |
Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 70 (2006) (holding that 10 U.S.C. § 983 did not violate the First Amendment). Examples are listed in reverse chronological order by date of the relevant Supreme Court decision concerning a constitutional challenge to the funding condition. |
| 28. |
Sabri v. United States, 541 U.S. 600, 602, 608 (2004) (holding that 18 U.S.C. § 666(a)(2) did not exceed Congress's authority under the Spending Clause). |
| 29. |
Am. Libr. Ass'n, 539 U.S. at 214 (plurality opinion) (concluding that 20 U.S.C. § 9134(f)(1)(A)(i), (B)(i) and 47 U.S.C. § 254(h)(6)(B)(i), (C)(i) did not violate the First Amendment rights of libraries or their patrons). |
| 30. |
New York v. United States, 505 U.S. 144, 171–73 (1992) (holding that 42 U.S.C. § 2021e(d)(2)(A)–(B) did not exceed Congress's authority under the Spending Clause). |
| 31. |
Dole, 483 U.S. at 206 (holding that 23 U.S.C. § 158 did not exceed Congress's authority under the Spending Clause). |
| 32. |
Oklahoma v. U.S. Civ. Serv. Comm'n, 330 U.S. 127, 142–43 (1947) (holding that § 12(a) of the Hatch Act did not violate the Tenth Amendment). |
| 33. | |
| 34. |
See New York, 505 U.S. at 158–59 ("The Court's broad construction of Congress' power under the Commerce and Spending Clauses has of course been guided, as it has with respect to Congress' power generally, by the Constitution's Necessary and Proper Clause . . . ."). |
| 35. |
U.S. Const. art. I, § 8, cl. 18. |
| 36. |
Landor v. La. Dep't of Corr. & Pub. Safety, 609 U.S. 59, 77 (2026). |
| 37. |
17 U.S. (4 Wheat.) 316, 421 (1819); see also United States v. Kebodeaux, 570 U.S. 387, 394 (2013) ("As we have come to understand these words [from McCulloch] and the provision they explain, they 'leav[e] to Congress a large discretion as to the means that may be employed in executing a given power.'" (second alteration in original) (quoting Lottery Case, 188 U.S. 321, 355 (1903))). |
| 38. |
Sabri v. United States, 541 U.S. 600, 603 (2004); 18 U.S.C. § 666(a)(2) (2001). |
| 39. |
Sabri, 541 U.S. at 605. |
| 40. |
Landor, 146 S. Ct. at 1946–48; see also id. at 1958 (Jackson, J., dissenting) (opining that "the majority reworks the Necessary and Proper Clause" by "contend[ing] that, rather than allow Congress to enforce statutes passed pursuant to other enumerated powers, the Necessary and Proper Clause must facilitate the enumerated power itself"). |
| 41. |
42 U.S.C. §§ 2000cc-1; 2000cc-2. |
| 42. |
Id. §§ 2000cc-1; 2000cc-5(4). |
| 43. |
Tanzin v. Tanvir, 592 U.S. 43, 47–52 (2020) (interpreting the Religious Freedom Restoration Act (RFRA)). In its current form, RFRA applies to the federal government and its officials (and those of the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. territories) but not state and local governments or officials. 42 U.S.C. §§ 2000bb-1; 2000bb-2(1)–(2). |
| 44. |
Golbert v. Smith, No. 25-2235, 2026 WL 2640471, at *2 (7th Cir. Sept. 8, 2026). |
| 45. |
Landor, 146 S. Ct. at 64–65. |
| 46. |
Id. at 70, 79. |
| 47. |
Id. at 69–70. |
| 48. |
Id. at 77 (alteration in original) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 434 (1819)). |
| 49. |
Id. (quoting Nat'l Fed. of Indep. Bus. v. Sebelius, 567 U.S. 519, 559 (2012) (opinion of Roberts, C.J.). |
| 50. |
E.g., South Dakota v. Dole, 483 U.S. 203, 207–08, 211 (1987). |
| 51. |
146 S. Ct. at 1943 (emphasis added); id. at 1948, 1954–55 (Jackson, J., dissenting) (characterizing the majority's decision as recognizing a "new" constitutional limit). |
| 52. |
Id. at 1943–44 (majority opinion). |
| 53. |
See U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."). See generally CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, coordinated by Kevin J. Hickey (2023) (discussing federalism limitations based on the Tenth and Eleventh Amendments and explaining that "[a]long with the limitations derived from Congress's enumerated powers, the Supreme Court has recognized federalism doctrines that affirmatively prohibit Congress from taking certain actions, even when Congress would otherwise be authorized to act under an enumerated power"). |
| 54. | |
| 55. | |
| 56. |
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 25 (1981). Retroactive conditions can also be coercive. See infra "Anti-Coercion." |
| 57. |
E.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 181–82 (2005); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640 (1999); Pennhurst, 451 U.S. at 17. But cf. Sossamon v. Texas, 563 U.S. 277, 290 (2011) ("We have acknowledged the contract-law analogy, but we have been clear 'not [to] imply ... that suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise.' We have not relied on the Spending Clause contract analogy to expand liability beyond what would exist under nonspending statutes, much less to extend monetary liability against the States . . . ." (citation omitted) (alteration in original) (quoting Barnes v. Gorman, 536 U.S. 181, 188 n.2 (2002)). |
| 58. |
See Pennhurst, 451 U.S. at 17 ("The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.' There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." (citations omitted)). |
| 59. |
See Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 219–20, 230 (2022) (holding that a physical therapy provider subject to various antidiscrimination laws as a condition of its participation in Medicare and Medicaid did not have clear notice that violations could result in paying emotional distress damages); Gonzaga Univ. v. Doe, 536 U.S. 273, 287–90 (2002) (holding that a student could not sue a private university for damages for violating a funding condition related to educational records because implying a privately enforceable right would violate the clear notice principle). |
| 60. |
451 U.S. 1 (1981). |
| 61. |
Id. at 11. |
| 62. |
42 U.S.C. § 6063(b)(5)(C) (1976 ed. & Supp. III). |
| 63. |
See Pennhurst, 451 U.S. at 12–13 (citing 42 U.S.C. § 6005 (requiring recipients to hire qualified individuals with disabilities); id. § 6009 (requiring states to submit a plan to evaluate services provided under the statute); id. § 6011(a) (requiring states to provide "satisfactory assurances that each [funded] program" has "a habilitation plan" in place for each person receiving services under the program); and id. § 6012(a) (requiring states to "have in effect a system to protect and advocate the rights of persons with developmental disabilities")). |
| 64. |
42 U.S.C. § 6010 (1976 ed. & Supp. III). |
| 65. |
See Pennhurst, 451 U.S. at 15. |
| 66. |
Id. at 17 (citations omitted). |
| 67. |
Id. |
| 68. |
See id. at 25. |
| 69. |
Id. at 23. |
| 70. |
Id. The Court reasoned that requiring that state plans include "assurances" that program beneficiaries would be "protected consistent with" the findings section "would be unnecessary if . . . all state programs were required to fund the rights described" in that section. Id. at 26 (emphasis added). |
| 71. |
Id. at 23. The Court further concluded that the statute's legislative history suggested that Congress intended the findings section "to be hortatory, not mandatory." Id. at 24. |
| 72. |
Id. at 27. |
| 73. |
Id. at 24. |
| 74. |
Id. at 25. |
| 75. |
See id. at 17 ("The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.'" (citing Steward Mach. Co. v. Davis, 301 U.S. 548, 585–98 (1937); Harris v. McRae, 448 U.S. 297 (1980))); Terry Jean Seligmann, Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause Legislation, 84 Tul. L. Rev. 1067, 1079 (2010) (stating that the "Pennhurst canon of statutory construction took on constitutional overtones in 1987 when the Rehnquist Court set the modern boundaries for Spending Clause legislation in South Dakota v. Dole"). |
| 76. |
See Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 220 (2022) ("After all, when considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table."). |
| 77. |
Pennhurst, 451 U.S. at 28. |
| 78. |
See, e.g., 42 U.S.C. § 2000d-1 (describing procedural steps an agency must take before terminating Title VI funds); 2 C.F.R. § 200.339 (2026) (providing uniform remedies for grantee noncompliance with federal laws and terms and conditions of federal awards). See generally CRS In Focus IF13138, Uniform Guidance for Federal Grants: An Overview, by Adam G. Levin (2025) (describing how provisions governing federal grants can come from program authorizing legislation, federal regulations—including general, uniform guidance from the Office of Management and Budget and program-specific regulations—and subregulatory guidance). |
| 79. |
See Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 369 (2025) ("Though it is rare enough for any statute to confer an enforceable right, spending-power statutes like Medicaid are especially unlikely to do so."). |
| 80. |
Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 183 (2023); see also Landor v. La. Dep't of Corr. & Pub. Safety, 609 U.S. 59, 67 (2026) (stating that "additional sanctions are permissible only with the 'voluntar[y] and knowin[g]' consent of those who must bear them"). |
| 81. |
Right of Action, Black's Law Dictionary (11th ed. 2019) (defining "private right of action" as an "individual's right to sue in a personal capacity to enforce a legal claim"). |
| 82. | |
| 83. |
See, e.g., 20 U.S.C. § 1415(i)(2)(A) (stating that "[a]ny party aggrieved by" certain findings and decisions under the act "shall have the right to bring a civil action . . . which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy"). |
| 84. |
Alexander v. Sandoval, 532 U.S. 275, 286 (2001). |
| 85. |
Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002). |
| 86. |
Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 368 (2025) (quoting Gonzaga Univ., 536 U.S. at 284). |
| 87. |
Gonzaga Univ., 536 U.S. at 280 (quoting Pennhurst, 451 U.S. at 17, 28, and n.21). |
| 88. |
Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 180 (2023). In prior cases, the Court applied a less rigorous analysis that it has since repudiated. See Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 377 (2025) ("Since Pennhurst, this Court has identified only three sets of spending-power statutes that confer enforceable rights under § 1983—those at issue in Wright, Wilder, and Talevski. But given this Court's longstanding repudiation of Wright and Wilder's reasoning, the statutes at issue in Talevski supply the only reliable yardstick against which to measure whether spending-power legislation confers a privately enforceable right." (citing Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987); Wilder v. Va. Hosp. Ass'n, 496 U.S. 498 (1990); and Talevski, 599 U.S. 166)). |
| 89. |
Gonzaga Univ. v. Doe, 536 U.S. 273, 276 (2002). |
| 90. |
Id. at 279 (quoting 20 U.S.C. § 1232g(b)(1)). |
| 91. |
Id. at 287. |
| 92. |
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, 2000e–2000e-17, which prohibits discrimination on the basis of race, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, which prohibits discrimination on the basis of sex in education programs, are two prominent examples of spending laws enacted pre-Pennhurst for which the Supreme Court has recognized an implied private right of action. See Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979). However, these examples do not illustrate the Court's current approach to implied rights of action, which requires clear notice of both a private right and a private remedy. See Alexander v. Sandoval, 532 U.S. 275, 287 (2001). |
| 93. |
Gonzaga, 536 U.S. at 287. |
| 94. |
Id. |
| 95. |
Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 364 (2025). |
| 96. |
Id. at 364 (alterations in original) (quoting 42 U.S.C. § 1396a(a)(23)(A)). |
| 97. |
Id. at 377–78; see also Saint Anthony Hosp. v. Whitehorn, 132 F.4th 962, 967, 972–93 (7th Cir. 2025) (holding that a provision in the Medicaid Act requiring contracts between states and managed-care organizations to require the latter to make payments to health care providers "on a timely basis" did not create an enforceable right for individual health care providers because the language is not "unmistakably focused on providers"), cert. denied, 146 S. Ct. 324 (2025). |
| 98. |
Medina, 606 U.S. at 378–79 (quoting Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 186 (2023)). |
| 99. |
Talevski, 599 U.S. at 171. |
| 100. |
Id. at 183–85. |
| 101. |
42 U.S.C. § 1396r(c)(1)(A)(ii). |
| 102. |
Talevski, 599 U.S. at 186. |
| 103. |
See Alexander v. Sandoval, 532 U.S. 275, 286 (2001) ("[P]rivate rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." (citation omitted)). |
| 104. |
42 U.S.C. § 1983; Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 365 (2025); see also CRS Legal Sidebar LSB10853, Health & Hospital Corporation of Marion County v. Talevski: Determining When A Statute Creates a Federal Right Actionable Under 42 U.S.C. § 1983, by Whitney K. Novak (2022). |
| 105. |
Medina, 606 U.S. at 365 (quoting 42 U.S.C. § 1983). |
| 106. |
Talevski, 599 U.S. at 180. |
| 107. |
See id. at 186, 189 (alteration in original) (quoting Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 252 (2009)). |
| 108. |
See id. at 191 (observing "nothing in the FNHRA that even hints at Congress's intent" to displace Section 1983, reasoning that "if anything, the language of the Act confirms otherwise, for it plainly states that '[t]he remedies provided under' its enforcement-process subsection are 'in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies'" (alterations in original) (quoting 42 U.S.C. § 1396r(h)(8))). |
| 109. |
Id. at 186–88. |
| 110. |
Id. at 188–89. |
| 111. |
Id. at 188–89. |
| 112. |
See CRS In Focus IF11291, Introduction to Tort Law, by Andreas Kuersten (2023) (stating that "compensatory damages . . . attempt to make an injured plaintiff 'whole,'" while punitive damages, which exceed compensatory damages, "punish the defendant for their conduct"). |
| 113. |
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). |
| 114. |
Id. |
| 115. |
Id.; see, e.g., Sch. Dist. v. Sec'y of the U.S. Dep't of Educ., 584 F.3d 253, 256 (6th Cir. 2009) (en banc) (asking whether, under the Spending Clause, "the obligations set forth" in the No Child Left Behind Act of 2001 "are unambiguous such that a state official would clearly understand her responsibilities under the Act"). |
| 116. |
Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 220 (2022). |
| 117. |
Barnes v. Gorman, 536 U.S. 181, 187 (2002). |
| 118. |
548 U.S. 291. Although parts of the IDEA predated Pennhurst, Congress added the relevant cause of action in 2004. Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, § 101, 118 Stat. 2647, 2723. |
| 119. |
548 U.S. at 297 (quoting 20 U.S.C. § 1415(i)(3)(B)). |
| 120. |
Id. at 300. |
| 121. |
Id. at 297–303 (finding "perhaps the strongest support for" the Court's interpretation of the IDEA in previous Supreme Court decisions interpreting the term "costs" to exclude expert fees); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246 (2009) (suggesting that even if the statute did not place school districts on notice that failure to provide a "free appropriate public education," a funding condition, could make them liable for private education costs in a specific factual scenario, states had "in any event been on notice" since a Court decision allowing such reimbursement in "appropriate circumstances"). A year later, the Court held that the "IDEA grants parents independent, enforceable rights" to sue on their own behalf. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 533 (2007). While the school district argued that the IDEA did not provide adequate notice of these types of actions, the Court reasoned that the case presented "a different issue" than Arlington Central because recognizing suits by parents did not expand "the basic measure of monetary recovery." Id. at 534. |
| 122. |
Arlington Cent., 548 U.S. at 304 (alteration in original) (quoting H.R. Rep. No. 99-687, at 5 (1986) (Conf. Rep.)). |
| 123. |
Id. |
| 124. |
Id. |
| 125. |
Landor v. La. Dep't of Corr. & Pub. Safety, 609 U.S. 59, 64–65, 70 (2026) ("Under the Spending Clause, Congress lacks regulatory authority to impose liability on [the prison officers] directly and must depend instead on consent. And because they never agreed to answer suits like this one, Mr. Landor's case cannot proceed against them any more than a breach of contract action might proceed against a defendant who never formed a contract."). See supra notes 40–49 and accompanying text for additional discussion of Landor. |
| 126. |
Id. at 1943. |
| 127. |
Id. at 1942. |
| 128. |
See CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, supra note 53 ("The Eleventh Amendment and State Sovereign Immunity"). |
| 129. |
FMC v. S.C. State Ports Auth., 535 U.S. 743, 753 (2002). |
| 130. |
U.S. Const. amend. XI. Although the text of the Eleventh Amendment bars suits only by citizens of "another State" or "any Foreign State," the broader principle of sovereign immunity encompasses suits by citizens of the defendant state. See CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, supra note 53. |
| 131. |
See CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, supra note 53 ("The Eleventh Amendment and State Sovereign Immunity"). |
| 132. |
Gruver v. La. Bd. of Supervisors for the La. State Univ. Agric. & Mech. Coll., 959 F.3d 178, 182 (5th Cir. 2020). |
| 133. |
Sossamon v. Texas, 563 U.S. 277, 284 (2011) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). |
| 134. |
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246–47 (1985). |
| 135. |
Id. at 247. |
| 136. |
Id. at 241. |
| 137. |
Id. |
| 138. |
Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 281 (5th Cir. 2005) (en banc). |
| 139. |
See Texas Educ. Agency v. U.S. Dep't of Educ., 992 F.3d 350, 361 (5th Cir. 2021) (stating that although courts in the Fifth Circuit have not required Congress to use the words "waiver" or "condition," "the caselaw shows that we have tended to require that the statute at least mention immunity"); Litman v. George Mason Univ., 186 F.3d 544, 554 (4th Cir. 1999) (rejecting the argument that to effect a waiver of sovereign immunity, a statute "must say something like 'as a condition of receiving federal funds under this Act, the States agree to waive their Eleventh Amendment immunity'" (quoting 42 U.S.C. § 2000d–7(a)(1))). |
| 140. |
42 U.S.C. § 2000d-7(a)(1); see Lane v. Pena, 518 U.S. 187, 200 (1996) (observing "the care with which Congress responded to our decision in Atascadero by crafting an unambiguous waiver of the States' Eleventh Amendment immunity in § 1003"). |
| 141. |
Litman, 186 F.3d at 553–54 (holding that Section 1003 of the Rehabilitation Act effected a waiver of sovereign immunity for a state university that accepted Title IX funds); Gruver v. La. Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll., 959 F.3d 178, 181 (5th Cir. 2020) (reaffirming a similar holding in the Fifth Circuit and observing that "[e]very circuit to consider the question—and all but one regional circuit has—agrees that [Section 1003] validly conditions federal funds on a recipient's waiver of its Eleventh Amendment immunity"); Pace, 403 F.3d at 280–82 (holding that by accepting funds under Section 504 of the Rehabilitation Act of 1973, which is expressly listed in Section 1003 of that act, Louisiana knowingly agreed to waive its sovereign immunity from Section 504 lawsuits in federal court); see also id. at 281 n.34 (listing other cases in which courts found a valid waiver of Section 504 claims and those involving "the other predicate statutes" listed in Section 1003). |
| 142. |
Cf. Lane, 518 U.S. at 192 (holding that Section 1003 of the Rehabilitation Act had not clearly "waived the Federal Government's sovereign immunity against awards of monetary damages" for claims under Section 504(a) of the Act (emphasis added)). But see Fryberger v. Univ. of Ark., 889 F.3d 471, 476 (8th Cir. 2018) (reasoning that "the lack of clarity in Lane . . . does not create ambiguity" with respect to states, because Section 1003 "speaks clearly to state immunity"). |
| 143. |
563 U.S. 277, 280–82 (2011); see supra notes 41–42 and accompanying text for a discussion of RLUIPA. |
| 144. |
Sossamon, 563 U.S. at 280–82 (quoting 42 U.S.C. § 2000cc-2(a)). |
| 145. |
Id. at 285 (citation omitted). |
| 146. |
Id. at 286. |
| 147. |
Id. at 285–87; see also Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 279 (5th Cir. 2005) (en banc) (reasoning that "[w]hen the condition requires a state to waive its Eleventh Amendment immunity, Dole's requirement of an unambiguous statement of the condition and its proscription on coercive inducements serve a dual role because they ensure compliance with [the Supreme Court's] requirement that waiver of Eleventh Amendment immunity must be (a) knowing and (b) voluntary"). |
| 148. |
42 U.S.C. § 2000d-7(a)(1). |
| 149. |
Sossamon, 563 U.S. at 292. |
| 150. |
Id. |
| 151. |
See supra notes 118–124 and accompanying text for a discussion of Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). See also Charlton-Perkins v. Univ. of Cincinnati, 185 F.4th 626, 635 (6th Cir. 2026) ("The clear-statement inquiry always begins with the text."). |
| 152. |
544 U.S. 167, 182–83 (2005). |
| 153. |
Id. |
| 154. |
Id. at 183. At a minimum, agency regulations may inform a court's interpretation of a Spending Clause statute's language. In interpreting Title IX in a 2026 decision, the Supreme Court explained that because the agency's "interpretation of Title IX was 'issued contemporaneously with the statute' and has 'remained consistent over time,' it is 'especially useful in determining the statute's meaning.'" West Virginia v. B.P.J. by Jackson, 146 S. Ct. 2356, 2371 (2026) (quoting Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 394 (2024))). |
| 155. |
Jackson, 544 U.S. at 183. |
| 156. |
Id. at 183–84. |
| 157. |
See Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979) ("Not only the words and history of Title IX, but also its subject matter and underlying purposes, counsel implication of a cause of action in favor of private victims of discrimination."). |
| 158. |
Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 369 n.1, 376 (2025) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002)). |
| 159. |
Texas v. Yellen, 105 F.4th 755, 761 (5th Cir. 2024); West Virginia by & through Morrisey v. U.S. Dep't of the Treasury, 59 F.4th 1124, 1132 (11th Cir. 2023), reh'g en banc denied, 59 F.4th 1124 (11th Cir. 2023); Kentucky v. Yellen, 54 F.4th 325, 330 (6th Cir. 2022). |
| 160. |
Texas, 105 F.4th at 761. |
| 161. |
Id. at 771–73; Morrisey, 59 F.4th at 1143–44; Kentucky, 54 F.4th at 352. |
| 162. |
Texas, 105 F.4th at 773. References in this report to a particular circuit (e.g., the Fifth Circuit) refer to the U.S. Court of Appeals for that circuit. |
| 163. |
Morrisey, 59 F.4th at 1148; cf. Florida v. Sec'y of the U.S. Dep't of Educ., 180 F.4th 1340, 1343 (11th Cir. 2026) (holding that a requirement that colleges and universities obtain accreditation from an agency-approved accreditation body for their students to access federal financial aid was sufficiently clear because even if accreditation standards varied, they were "ascertainable"). |
| 164. |
Kentucky, 54 F. 4th at 353–54. |
| 165. |
New York v. United States, 505 U.S. 144, 167 (1992). |
| 166. |
See Landor v. La. Dep't of Corr. & Pub. Safety, 609 U.S. 59, 67 (2026) (discussing the "founding-era consensus" that "the Spending Clause confers no authority to 'regulate directly'" (quoting Dole, 483 U.S. at 209)); supra "Broad Spending Power for the General Welfare." |
| 167. |
In South Dakota v. Dole, Justice O'Connor raised federalism concerns in arguing for a more rigorous relatedness requirement. 483 U.S. 203, 213 (1987) (O'Connor, J., dissenting). She posited that if "the spending power is to be limited only by Congress' notion of the general welfare, the reality . . . is that the Spending Clause gives 'power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.'" Id. (quoting United States v. Butler, 297 U.S. 1, 78 (1936)). |
| 168. |
483 U.S. at 207 (1987) (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)). |
| 169. |
Id. at 208. |
| 170. |
Id. at 208–09 (citing 23 U.S.C. § 101(b)). |
| 171. |
City of Los Angeles v. Barr, 929 F.3d 1163, 1176 (9th Cir. 2019). |
| 172. |
See id. at 1175 (observing that "the Court has never struck down a condition on federal grants based on this relatedness prong"). |
| 173. |
Id. |
| 174. |
Id. (quoting Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002)). |
| 175. |
E.g., Kansas v. United States, 214 F.3d 1196, 1199–1200 (10th Cir. 2000) (holding that the Temporary Assistance to Needy Families (TANF) program, which "provides financial support for low-income families," was "clearly related to the IV-D [Child Support Enforcement] program and its requirements, which assist low-income families in collecting child support from absent parents," observing, inter alia, that both programs were "set forth in the same subchapter of the Social Security Act, which bears the heading 'Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services'"). |
| 176. |
Cutter v. Wilkinson, 544 U.S. 709, 727 n.2 (2005) (Thomas, J., concurring). In Cutter, Justice Thomas opined that although RLUIPA was "entirely consonant with the Establishment Clause, it may well exceed Congress' authority under either the Spending Clause or the Commerce Clause." Id. Justice Thomas reiterated his view, first stated in Sabri v. United States, 541 U.S. 600, 613 (2004) (Thomas, J., concurring in the judgment), that "for a Spending Clause condition on a State's receipt of funds to be 'Necessary and Proper' to the expenditure of the funds, there must be 'some obvious, simple, and direct relation' between the condition and the expenditure of the funds." Id. |
| 177. |
See Landor v. Louisiana Dep't of Corr. & Pub. Safety, 609 U.S. 59, 69 n.3 (2026) (stating that "consent is a necessary but not sufficient condition for constitutionality" and listing the Dole principles, including relatedness, as additional limitations). |
| 178. |
Cutter v. Wilkinson, 423 F.3d 579, 587 (6th Cir. 2005) (finding "nothing in Justice Thomas's concurrence that alters our evaluation" of RLUIPA under Dole's relatedness prong, and holding that "RLUIPA satisfies the Dole relatedness requirement"). |
| 179. |
See infra "Executive Branch Conditions." |
| 180. |
See, e.g., Illinois v. Fed. Emergency Mgmt. Agency (FEMA), 801 F. Supp. 3d 75, 96 (D.R.I. 2025) (concluding that certain immigration-related conditions were "not reasonably related to the purposes of the grants to which they attach," because the agency cited "its broad homeland security mission, but the grants at issue fund programs such as disaster relief, fire safety, dam safety, and emergency preparedness"). |
| 181. |
See, e.g., Freedom Network v. Trump, 830 F. Supp. 3d 681, 709 (N.D. Ill. 2026) (concluding that "[e]ach of the challenged conditions are completely unrelated to, and indeed are at odds with," the Trafficking Victims Protection Act (TVPA), reasoning, for one condition, that "in contrast to the immigration enforcement condition's prohibition on any costs that may indirectly promote the violation of immigration laws, the TVPA provides that victims of trafficking should receive benefits regardless of their immigration status"); City of Chicago v. DOJ, 822 F. Supp. 3d 873, 888 (N.D. Ill. 2026) (stating that "the purpose of the COPS Act is to enhance cooperation between law enforcement agencies and local communities" and reasoning that "far from supporting this purpose, the Immigration Condition contravenes it by requiring local police to assist with federal civil immigration enforcement," which "would likely undermine the relationship between local police and the community"). |
| 182. |
See FEMA, 801 F. Supp. 3d at 96 (reasoning that "[s]weeping immigration-related conditions imposed on every DHS-administered grant, regardless of statutory purpose, lack the necessary tailoring" under the relatedness standard). But cf. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 492–93 (4th Cir. 2005) (upholding a condition concerning waiver of Eleventh Amendment immunity for violating a rule prohibiting disability discrimination even though the waiver condition applied to "any program or activity that accepts federal funds for any purpose" because the condition "applie[d] only with respect to the 'program or activity' that receives those funds," and thus was "sufficiently related to" the rule's purpose of "ensur[ing] that federal funds are not used to facilitate disability discrimination"). |
| 183. |
Kansas v. United States, 214 F.3d 1196, 1203 (10th Cir. 2000) ("In this context, a difficult choice remains a choice, and a tempting offer is still but an offer."). |
| 184. |
New York v. United States, 505 U.S. 144, 149 (1992). |
| 185. |
Murphy v. Nat'l Collegiate Athletic Ass'n, 584 U.S. 453, 470 (2018). |
| 186. |
Id. |
| 187. |
U.S. Const. art. VI, cl. 2. |
| 188. |
See, e.g., U.S. Const. art. I, § 8. |
| 189. |
U.S. Const. amend. X; see also Murphy, 584 U.S. at 471 ("The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms."). |
| 190. |
See New York, 505 U.S. at 149 ("[W]hile Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so."); Printz v. United States, 521 U.S. 898, 925 (1997) ("[T]he Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."); Murphy, 584 U.S. at 475 ("It was a matter of happenstance that the laws challenged in New York and Printz commanded 'affirmative' action as opposed to imposing a prohibition. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event."). |
| 191. |
See Religious Sisters of Mercy v. Azar, 513 F. Supp. 3d 1113, 1151 (D.N.D. Jan. 19, 2021) ("The Spending Clause's coercion backstop is closely linked to the Tenth Amendment concept that the federal government may not commandeer the states 'to enact or administer a federal regulatory program.'" (quoting New York, 505 U.S. at 188)). |
| 192. |
NFIB v. Sebelius, 567 U.S. 519, 578 (2012) (plurality opinion). |
| 193. |
South Dakota v. Dole, 483 U.S. 203, 211 (1987) (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937))). |
| 194. |
Id. at 211. |
| 195. |
Id. |
| 196. |
Samuel R. Bagenstos, The Anti-leveraging Principle and the Spending Clause After NFIB, 101 Geo. L.J. 861, 864 (2013) (stating that NFIB "marks 'the first time ever' that the Court has held that a spending condition unconstitutionally coerced the states" (quoting NFIB, 567 U.S. at 625 (Ginsburg, J., concurring in part and dissenting in part))). |
| 197. |
NFIB, 567 U.S. 519. |
| 198. |
NFIB, 567 U.S. at 575–89 (plurality opinion of Roberts, C.J., joined by Breyer and Kagan, JJ.); id. at 671–89 (joint opinion by Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). |
| 199. |
E.g., Gruver v. La. Bd. of Supervisors for the La. State Univ. Agric. & Mech. Coll., 959 F.3d 178, 183 n.5 (5th Cir. 2020); Miss. Comm'n on Env't Quality v. Env't Prot. Agency (EPA), 790 F.3d 138, 176 & n.22 (D.C. Cir. 2015) (per curiam); Mayhew v. Burwell, 772 F.3d 80, 88–89 (1st Cir. 2014); see also Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976))). |
| 200. |
NFIB, 567 U.S. at 584 (plurality opinion). |
| 201. |
Id. at 542 (majority opinion); see also id. at 581 (plurality opinion). |
| 202. |
Id. at 580–82 (plurality opinion). |
| 203. |
Id. at 584 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 25 (1981)) (reasoning that a "State could hardly anticipate that Congress's reservation of the right to 'alter' or 'amend' the Medicaid program included the power to transform it so dramatically"). |
| 204. |
See Texas v. Yellen, 105 F.4th 755, 768 (5th Cir. 2024) ("The point at which permissible inducement crosses over to impermissible coercion is not always easy to discern under the Supreme Court's precedent, but it lies somewhere between Dole and NFIB."). |
| 205. |
See, e.g., Mayhew v. Burwell, 772 F.3d 80, 89 (1st Cir. 2014) (holding that the "maintenance-of-effort" provision in the Affordable Care Act was not unconstitutionally coercive because "unlike the new Medicaid program expansion first appearing in the ACA, [it] is not a new program"); New York v. Dep't of Health & Hum. Servs. (HHS), 414 F. Supp. 3d 475, 571 (S.D.N.Y. 2019) (reasoning that "like the Medicaid expansion at issue in NFIB," HHS's 2019 rule regarding compliance with federal "conscience" statutes "would substantively transform the existing regulatory regime"). |
| 206. |
Am. Ass'n of Univ. Professors v. Trump, 815 F. Supp. 3d 907, 960 (N.D. Cal. 2025) (quoting NFIB, 567 U.S. at 580)) (reasoning that the funds "at risk" for a public university "cover many existing programs, such as ongoing research contracts, student financial aid, and Medicaid/Medicare funding"), appeal dismissed, No. 26-263, 2026 WL 1049175 (9th Cir. Feb. 11, 2026). |
| 207. |
See New York v. DOJ, 951 F.3d 84, 116 (2d Cir. 2020) ("This case is much more akin to Dole than to NFIB. While [noncompliance] . . . can result in the denial of any Byrne [JAG program] funding for that year, plaintiffs do not—and cannot—claim that such a loss represents so significant a percentage of their annual budgets as to cross the line from pressure to coercion."); New York, 414 F. Supp. 3d at 570 (holding that an HHS rule on penalties for noncompliance with federal "conscience" statutes was coercive, reasoning that NFIB was "a more apt analogy" than Dole, because the HHS rule "threaten[ed] not a small percentage of the States' federal health care funding, but literally all of it"). |
| 208. |
See, e.g., Gruver v. La. Bd. of Supervisors for the La. State Univ. Agric. & Mech. Coll., 959 F.3d 178, 184 (5th Cir. 2020) ("The threat of LSU losing what amounts to just under 10% of its funding is more like the 'relatively mild encouragement' of a state losing 5% of its highway funding (less than 0.5% of South Dakota's budget) than the 'gun to the head' of a state losing all of its Medicaid funding (over 20% of the average state's budget)." (quoting NFIB, 567 U.S. at 580–82)). |
| 209. |
See, e.g., Am. Ass'n of Univ. Professors, 815 F. Supp. 3d at 961 (reasoning that the challenged funding conditions "bear many of the same characteristics as the provision at issue in NFIB," because, among other similarities "federal funds account for more than half of the [university's] research funding and nearly one-third of its operating budget"). |
| 210. |
See Miss. Comm'n on Env't Quality v. EPA, 790 F.3d 138, 178–79 (D.C. Cir. 2015) (expressing "some uncertainty as to whether a coerciveness inquiry was required" in the case because "as described in NFIB, the inquiry in Dole was triggered by the fact that the Congress had imposed a condition that did not restrict how the federal highway funds at issue were to be used," whereas "[h]ere, by contrast, the condition and sanction do redirect the federal highway funds of non-complying states to programs of the Congress' choosing"). |
| 211. |
Gruver, 959 F.3d at 183 (quoting NFIB, 567 U.S. at 580). |
| 212. |
Northport Health Servs. of Ark. v. HHS, 438 F. Supp. 3d 956, 963–64 (W.D. Ark. 2020), aff'd, 14 F.4th 856 (8th Cir. 2021). |
| 213. |
Id. at 971. |
| 214. |
Id. at 970–71. Another district court did not find this feature of NFIB to preclude an anti-coercion argument from private parties challenging a similar rule, reasoning that whether the rule was an incentive or "economic dragooning" was relevant to the question of the agency's statutory authority to adopt the rule. Am. Health Care Ass'n v. Burwell, 217 F. Supp. 3d 921, 929 (N.D. Miss. 2016). In that case, the court reasoned that the "plaintiffs' basic point still stands: that nursing homes are so dependent upon Medicare and Medicaid funding that the Rule in this case effectively amounts to a ban on pre-dispute nursing home arbitration contracts." Id. In concluding that the rule likely violated the Federal Arbitration Act, the court stated that the "Rule should, and likely will be, treated as what it effectively is (i.e. a de facto ban), in determining whether it conflicts with the FAA." Id. |
| 215. |
Northport Health Servs. of Ark., LLC, 14 F.4th at 869 n.5 (citation omitted). |
| 216. |
South Dakota v. Dole, 483 U.S. 203, 210 (1987). |
| 217. |
Bd. of Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (stating that "our modern 'unconstitutional conditions' doctrine holds that the government 'may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech' even if he has no entitlement to that benefit" (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972))). |
| 218. |
Dole, 483 U.S. at 210 (describing "the 'independent constitutional bar' limitation" as "the unexceptionable proposition that the [spending] power may not be used to induce the States to engage in activities that would themselves be unconstitutional"); see also United States v. Hernandez, 615 F. Supp. 2d 601, 623 (E.D. Mich. 2009) (interpreting the "independent constitutional bar" discussed in Dole to "merely prevent[] Congress from conditioning funds on behavior that the constitution prohibits the states from engaging in on their own"). |
| 219. |
See U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."); Dole, 483 U.S. at 210–11 (explaining that "a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress' broad spending power"). |
| 220. |
539 U.S. 194, 203, 214 (2003) (plurality opinion). |
| 221. |
Id. at 201 (quoting 20 U.S.C. §§ 9134(f)(1)(A)(i), (B)(i) and 47 U.S.C. §§ 254(h)(6)(B)(i), (C)(i)). |
| 222. |
Id. at 202. |
| 223. |
See id. at 214 (plurality opinion of Rehnquist, C.J., joined by O'Connor, Scalia, and Thomas, JJ.); id. at 214–15 (Kennedy, J., concurring in the judgment); id. at 215–16 (Breyer, J., concurring in the judgment). |
| 224. |
Van Wyhe v. Reisch, 581 F.3d 639, 651 (8th Cir. 2009) (analyzing a separation-of-powers challenge to a spending condition). |
| 225. |
See, e.g., Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (holding that RLUIPA did not violate the Tenth Amendment under the "independent constitutional bar" prong of the analysis). |
| 226. |
See West Virginia v. HHS, 289 F.3d 281, 286–87 (4th Cir. 2002) ("If the Congressional action amounts to coercion rather than encouragement, then that action is not a proper exercise of the spending powers but is instead a violation of the Tenth Amendment."). |
| 227. |
Benning v. Georgia, 391 F.3d 1299, 1308 (11th Cir. 2004) (holding that RLUIPA did not violate the Tenth Amendment); accord Madison v. Virginia, 474 F.3d 118, 126–27 (4th Cir. 2006). |
| 228. |
See, e.g., Hodges v. Thompson, 311 F.3d 316, 319 (4th Cir. 2002) (stating that because "the Tenth Amendment itself does not act as a constitutional bar to Congress's spending power," the court would "consider South Carolina's Tenth Amendment argument, not as a limitation related to the Spending Clause, but as an independent constitutional challenge" (internal quotation marks and citation omitted)). |
| 229. |
South Dakota v. Dole, 483 U.S. 203, 210 (1987) (stating that Congress's spending power "may not be used to induce the States to engage in activities that would themselves be unconstitutional"). |
| 230. |
See, e.g., Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205, 221 (2013) (holding that the funding condition violated the First Amendment rights of domestic nonprofit organizations compelled to speak the government's message). |
| 231. |
Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 286 (5th Cir. 2005) (en banc). |
| 232. |
Perry v. Sindermann, 408 U.S. 593, 597 (1972). |
| 233. |
See, e.g., Regan v. Taxation with Representation, 461 U.S. 540 (1983) (condition on qualification for tax-exempt status was constitutional); Elrod v. Burns, 427 U.S. 347, 353 (1976) (plurality opinion) (political patronage requirement for nonpolicymaking government employees was unconstitutional). |
| 234. |
Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205, 214–15 (2013). |
| 235. |
Id. at 217. |
| 236. |
Rust v. Sullivan, 500 U.S. 173, 193–96 (1991). |
| 237. |
Id. at 180–81. |
| 238. |
Id. at 193–94. |
| 239. |
539 U.S. 194, 210–14 (2003) (plurality opinion). |
| 240. |
Id. at 199–201. |
| 241. |
Id. at 210–14. The Court rejected this argument without resolving whether public libraries, as governmental entities, have First Amendment rights. Id. at 210–11. Four Justices joined the main opinion, and two additional Justices concurred in the Court's judgment. Id. at 214–15 (Kennedy, J., concurring in the judgment); id. at 215–20 (Breyer, J., concurring in the judgment). |
| 242. |
Id. at 211 (plurality opinion). |
| 243. |
Id. at 211–12. The plurality also reasoned that the condition did not "penalize" a recipient's decision to "provide [its] patrons with unfiltered Internet access"; it "simply reflect[ed] Congress' decision not to subsidize" such access. Id. at 212. |
| 244. |
Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205, 208 (2013) (quoting 22 U.S.C. § 7631(f)). |
| 245. |
Id. at 218. |
| 246. |
Id. at 211 (quoting 45 C.F.R. § 89.3). |
| 247. |
Id. at 219. |
| 248. |
E.g., City of Chicago v. DOJ, 822 F. Supp. 3d 873, 881 (N.D. Ill. 2026) (explaining that after DOJ "attached conditions to grant money allocated to Plaintiffs, Plaintiffs filed this case alleging that the conditions violate constitutional separation of powers, the Spending Clause, and the Administrative Procedure Act"). |
| 249. |
5 U.S.C. § 706(2)(C). |
| 250. |
Id. § 702. |
| 251. |
See Dep't of Educ. v. California, 604 U.S. 650, 651 (2025) (per curiam) (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002)). |
| 252. |
Id. at 651 (quoting 28 U.S.C. § 1491(a)(1)). |
| 253. |
Id.; Nat'l Insts. of Health v. Am. Pub. Health Ass'n (APHA), 145 S. Ct. 2658 (2025). |
| 254. |
California, 604 U.S. at 650–51. |
| 255. |
Id. at 651 (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002)) (citing 28 U.S.C. § 1491(a)(1)). |
| 256. |
APHA, 145 S. Ct. 2658. |
| 257. |
APHA v. Nat'l Insts. of Health, No. 25-CV-10787, 2025 WL 1747128, at *1 (D. Mass. June 23, 2025); Massachusetts v. Kennedy, No. 25-CV-10814, 2025 WL 1747213, at *1 (D. Mass. June 23, 2025). |
| 258. |
APHA, 145 S. Ct. at 2659. |
| 259. |
E.g., Metro. Transportation Auth. v. Duffy, No. 25-CV-1413, 2026 WL 588117, at *25 (S.D.N.Y. Mar. 3, 2026), appeal filed, No. 26-1213 (2d Cir. 2026). |
| 260. |
APHA, 145 S. Ct. at 2660–61 (Barrett, J., concurring in the partial grant of the application for stay). |
| 261. |
Id. at 2661. |
| 262. |
Id. at 2662–63 (Roberts, C.J., concurring in part and dissenting in part). |
| 263. |
Id. at 2663. |
| 264. |
Id. at 2663–65 (Gorsuch, J., concurring in part and dissenting in part). Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the government's application for an interim stay in full. Id. at 2665 (Kavanaugh, J., concurring in part and dissenting in part). |
| 265. |
Id. at 2663–64 (alteration in original) (Gorsuch, J., concurring in part and dissenting in part) (quoting Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025)). |
| 266. |
See, e.g., Council for Opportunity in Educ. v. Dep't of Educ., No. 25-CV-03491, 2026 WL 120984, at *7 (D.D.C. Jan. 16, 2026) ("It appears, then, that it remains an open question as to whether federal district courts are precluded from entertaining any APA claims relating to prior grant determinations that seek to vacate or enjoin enforcement of those past decisions."); President & Fellows of Harv. Coll. v. HHS, 798 F. Supp. 3d 77, 105 n.9 (D. Mass. 2025) ("[T]his Court (and likely all district courts) endeavors to follow the Supreme Court's rulings . . . . That said, the Supreme Court's recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved."), appeal filed sub nom. Am. Ass'n of Univ. Professors v. DOJ, No. 25-2231 (1st Cir. Dec. 31, 2025). |
| 267. |
California v. U.S. Dep't of Educ., No. 25-CV-10548, 2025 WL 3165713, at *12 (D. Mass. Nov. 13, 2025). |
| 268. |
Id. at *14–18. |
| 269. |
Woonasquatucket River Watershed Council v. U.S. Dep't of Agric., 186 F.4th 25, 50 (1st Cir. 2026) (reasoning that "although the remaining relief—which prohibits the Government from implementing the challenged agency actions— 'may result in the disbursement of funds,' it does not exceed the District Court's authority under the APA because it 'is not itself an order to enforce a contractual obligation to pay money'" (alterations in original) (citations omitted) (first quoting Dep't of Educ. v. California, 604 U.S. 650, 651 (2025) (per curiam); and then quoting New York v. Trump, 171 F.4th 1, 30 (1st Cir. 2026)). Cf. New York v. Trump, 171 F.4th 1, 27–28 (1st Cir. 2026) (vacating a district court's "preliminary injunction to the extent that it requires the Agency Defendants to make 'disbursements to the States on awarded grants' and 'executed contracts'" but affirming the portions enjoining the Agency Defendants from implementing a particular agency directive, including by "suspending, terminating, or otherwise impeding the disbursement of appropriated federal funds to the States"). But cf. Sustainability Inst. v. Trump, 165 F.4th 817, 827–29 (4th Cir. 2026) (holding that the district court "lacked jurisdiction to adjudicate Plaintiffs' APA claims challenging the freezing or termination of their grants and to order enforcement of those grants" because "the alleged statutory and constitutional violations do not alter the essentially contractual nature of Plaintiffs' APA claims"; "Plaintiffs identify no source of law, besides their grant agreements, guaranteeing them the relief they seek: continued payments on those grants"). |
| 270. |
Am. Acad. of Pediatrics v. HHS, 816 F. Supp. 3d 27, 52 (D.D.C. 2026) (quoting Crowley Gov't Servs., Inc. v. Gen. Servs. Admin., 38 F.4th 1099, 1106 (D.C. Cir. 2022)). |
| 271. |
Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982); Up State Fed. Credit Union v. Walker, 198 F.3d 372, 376 (2d Cir. 1999) ("At least two other circuits have adopted the 'rights and remedies' analysis of Megapulse."); e.g., Am. Acad. of Pediatrics v. HHS, 816 F. Supp. 3d 27, 52 (D.D.C. 2026) (concluding that the "D.C. Circuit's Megapulse test for identifying claims within the exclusive jurisdiction of the Court of Federal Claims under the Tucker Act, remains good law" after "the Supreme Court's per curiam, non-merits stay orders on the emergency docket in [California] and APHA"). |
| 272. |
Unlike some other areas of the Constitution, "[w]hen it comes to spending, the President has none of 'his own constitutional powers' to 'rely' upon." City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1233–34 (9th Cir. 2018) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)). As to federal agencies, their power comes from Congress. See La. Pub. Serv. Comm'n v. Fed. Commc'ns Comm'n, 476 U.S. 355, 374 (1986) ("[A]n agency literally has no power to act . . . unless and until Congress confers power upon it."). See generally CRS Legal Sidebar LSB11302, Congressional and Executive Roles in Spending: Legal Frameworks. |
| 273. |
E.g., City & Cnty. of San Francisco, 897 F.3d at 1235; see also Louisiana v. Becerra, 629 F. Supp. 3d 477, 483 (W.D. La. 2022) (explaining that the case, "although factually centered around the Head Start Mandate, is ultimately about the separation of powers"; "[s]pecifically, whether . . . government agencies under the Executive branch, have the authority to impose the Head Start Mandate" which "required that all Head Start staff, volunteers working in classrooms or directly with children, and contractors whose activities involve contact with or providing direct services to children and families to be fully vaccinated for COVID-19 by" a certain date), aff'd in part, vacated in part, remanded, No. 22-30748, 2023 WL 8368874 (5th Cir. Aug. 29, 2023) (vacating the district court's injunction as moot but "otherwise leav[ing] the district court's judgment and memorandum ruling in place"). |
| 274. |
Oakley v. DeVos, No. 20-CV-03215, 2020 WL 3268661, at *7 (N.D. Cal. June 17, 2020) (quoting City & Cnty. of San Francisco, 897 F.3d at 1233). E.g., Biden v. Missouri, 595 U.S. 87, 95–96 (2022) (per curiam) (concluding that the Secretary of HHS "did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19"). |
| 275. |
City of Philadelphia v. Att'y Gen., 916 F.3d 276, 284 (3d Cir. 2019). |
| 276. |
E.g., Nebraska v. Su, 121 F.4th 1, 5 (9th Cir. 2024) (explaining that four states challenged a 2021 executive order and Department of Labor rule requiring federal contractors to pay their employees a $15 minimum wage, arguing that both the order and the rule "violate[d] the Federal Property and Administrative Services Act and the major questions doctrine, and that the implementing rule violate[d] the Administrative Procedure Act"). |
| 277. |
E.g., Cnty. of King v. Turner, No. 25-3664, 2026 WL 2489361, at *14 (9th Cir. Aug. 25, 2026) ("Because the Local Governments are likely to succeed on their statutory authorization claim—and consistent with constitutional avoidance principles—we need not address their additional APA and constitutional claims, none of which would affect the scope of relief awarded below."). |
| 278. |
See CRS Legal Sidebar LSB10721, The Constitutional Avoidance Doctrine: The Last Resort Rule (Part 2 of 3), by Jeanne M. Dennis (2022). |
| 279. |
E.g., City of Chicago v. Barr, 961 F.3d 882, 931 (7th Cir. 2020). |
| 280. |
City of Chicago v. Barr, 405 F. Supp. 3d 748, 752 (N.D. Ill. 2019), aff'd, 961 F.3d 882 (7th Cir. 2020); see Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006) (codified as amended at 34 U.S.C. §§ 10151–10158). |
| 281. |
34 U.S.C. § 10152. |
| 282. |
Id. §§ 10153, 10156. |
| 283. |
Id. §§ 10151–10158. |
| 284. |
Id. § 10153(a)(5)(D) (emphasis added). |
| 285. |
Agency-imposed grant conditions may vary from year to year, or from Administration to Administration. See, e.g., CRS Report R41360, Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Law and Policy, by Luisa Blanchfield (2022) (describing how various Administrations reinstated, expanded, or rescinded the "Mexico City Policy" concerning abortion-related conditions on foreign assistance funding). |
| 286. |
See, e.g., DOJ, Off. of Just. Programs, Edward Byrne Memorial Justice Assistance Grant Program: FY 2017 State Solicitation 23–24 (2017). The FY2018 conditions also required certification with 8 U.S.C. § 1644, the language of which tracks § 1373. In the Byrne JAG litigation, DOJ "concede[d] that the two compliance conditions are equivalent" and that a court's "disposition as to one [would] control as to the other." City of Chicago v. Barr, 961 F.3d 882, 889 (7th Cir. 2020). The litigation also involved four other conditions on Byrne JAG grants. The certification condition is discussed in this section for purposes of illustration. |
| 287. |
See 8 U.S.C. § 1373(a) ("Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual."). |
| 288. |
See City of Chicago, 961 F.3d at 897 ("Under the Attorney General's reasoning, Congress itself incorporated § 1373 into the Byrne JAG program by requiring compliance with 'all other applicable federal laws.'"). |
| 289. |
City of Providence v. Barr, 954 F.3d 23, 45 (1st Cir. 2020); City of Philadelphia v. U.S. Att'y Gen., 916 F.3d 276, 291 (3d Cir. 2019); City of Chicago, 961 F.3d at 909. |
| 290. |
See, e.g., City of Providence, 954 F.3d at 39 ("We hold that 'applicable Federal laws' . . . are federal laws that apply to state and local governments in their capacities as Byrne JAG grant recipients."); City of Philadelphia, 916 F.3d at 289–90 ("[I]t would be reasonable to view 'all other applicable Federal laws' to refer specifically to laws that apply to operations relating to the grant, not to require the City to certify compliance with every single law that might apply to it."); City of Chicago, 961 F.3d at 909 ("[B]ased on the language, structure, and purpose of the Act, the reference to 'all other applicable federal laws' in § 10153 should be read as referencing any federal law that by its terms applies to federal grants or grantees in that capacity."). |
| 291. |
City of Providence, 954 F.3d at 39; City of Philadelphia, 916 F.3d at 289; City of Chicago, 961 F.3d at 901. |
| 292. |
City of Providence, 954 F.3d at 39; City of Philadelphia, 916 F.3d at 291; City of Chicago, 961 F.3d at 931. The Ninth Circuit issued a narrower ruling. It affirmed an injunction barring DOJ from enforcing the certification condition against the City and County of San Francisco, reasoning that the localities' "respective sanctuary laws comply with 8 U.S.C. § 1373." City & Cnty. of San Francisco v. Barr, 965 F.3d 753, 764 (9th Cir. 2020). |
| 293. |
City of Chicago, 961 F.3d at 931. |
| 294. |
New York v. DOJ, 951 F.3d 84, 111 (2d Cir. 2020). |
| 295. |
Id. at 104–05 (quoting § 10153(a)(5)). |
| 296. |
Id. at 105. |
| 297. |
Id. at 105–09. |
| 298. |
Id. at 111. |
| 299. |
Id. |
| 300. |
Press Release, N.Y. Att'y Gen., Attorney General James Secures the Restoration of Over $30 Million in Public Safety Grants (May 4, 2021), https://ag.ny.gov/press-release/2021/attorney-general-james-secures-restoration-over-30-million-public-safety-grants [https://perma.cc/A28M-SHHU]; see also Joint Stipulation to Dismiss, New York v. DOJ, No. 20-795 (U.S. Mar. 4, 2021); Joint Stipulation to Dismiss, City of New York v. DOJ, No. 20-796 (U.S. Mar. 4, 2021); New York v. DOJ, 592 U.S. 1307 (2021) (mem.). |
| 301. |
E.g., Freedom Network USA v. Trump, No. 25-C-12419, 2026 WL 1864228, at *3 (N.D. Ill. June 29, 2026) (TVPA funds administered by DOJ); City of Chicago v. DOJ, 822 F. Supp. 3d 873 (N.D. Ill. 2026) (Community Oriented Policing Services (COPS) grants administered by DOJ); City & Cnty. of San Francisco v. Trump, No. 25-CV-01350, 2025 WL 2426858, at *3 (N.D. Cal. Aug. 22, 2025) (Continuum of Care grants administered by the Department of Housing and Urban Development). |
| 302. |
Biden v. Missouri, 595 U.S. 87, 90 (2022) (per curiam) (quoting 42 U.S.C. § 1395x(e)(9) and citing id. §§ 1395x(cc)(2)(J), 1395i–3(d)(4)(B), 1395k(a)(2)(F) (i), 1396r(d)(4)(B), 1396d(l)(1), and 1396d(o)). |
| 303. |
See Pub. L. No. 119-21, 139 Stat 72, 390 (2025) ("To be eligible to receive funds made available under this subsection, a State or local government shall be in full compliance, as determined by the Attorney General, with section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373)."). |
| 304. |
Cf. City of Los Angeles v. Barr, 929 F.3d 1163, 1176 (9th Cir. 2019) (upholding a scoring process for competitive grants that prioritized applications with an immigration enforcement focus, reasoning that it was not coercive because "at most," it "encourages applicants to focus on these federal priorities"). |
| 305. |
See City of Chicago v. Barr, 961 F.3d 882, 907 (7th Cir. 2020) ("Although courts rarely second-guess the degree of policy judgment left by Congress to those responsible for executing the law, the term 'applicable' by itself is so devoid of any definition or guidance that, if the Attorney General were relying on that provision as a delegation of authority to impose the conditions, it would vest discretion unmoored by any legislative general policy or boundaries of authority."). |
| 306. |
See CRS Legal Sidebar LSB11464, The Uniform Grants Regulation: OMB's Relation to Federal Grantmaking Agencies (discussing legal options for Congress in "shap[ing] federal financial assistance management"). |
| 307. |
See supra "General Constitutional Limits on Federal Funding Conditions"; Minnesota v. Ellison, No. 25-CV-1608, 2026 WL 2295012, at *15 (D. Minn. Aug. 10, 2026) ("The Spending Clause analysis is distinct from the Title IX statutory interpretation issue. In other words, Defendants may comply with Title IX but simultaneously violate the Spending Clause."). |
| 308. |
E.g., Tennessee v. Cardona, 762 F. Supp. 3d 615, 626 (E.D. Ky. 2025) (reasoning that a Department of Education rule banning discrimination on the basis of sexual orientation in Title IX programs violated the clear notice principle by "expand[ing] Title IX to encompass entirely new subject matter that is not contemplated by the text of the statute"), appeal dismissed sub nom. Tennessee v. McMahon, No. 25-5205, 2026 WL 2645959 (6th Cir. May 13, 2026); Texas v. Cardona, 743 F. Supp. 3d 824, 885 (N.D. Tex. 2024) (holding that guidance documents interpreting Title IX to bar discrimination based on sexual orientation and gender identity "introduce conditions that are not 'unambiguously' clear"), appeal dismissed sub nom. Texas v. McMahon, No. 24-10910, 2025 WL 2840825 (5th Cir. Apr. 23, 2025). |
| 309. |
E.g., City of Chicago v. DOJ, 822 F. Supp. 3d 873, 889 (N.D. Ill. 2026) (finding an agency funding condition prohibiting certain "diversity, equity, and inclusion" initiatives contrary to, and thus insufficiently related to, a statutory program that included a "specific mandate to 'seek, recruit, and hire members of racial and ethnic minority groups and women'" (quoting 34 U.S.C. § 10382(c)(11)). |
| 310. |
E.g., New York v. HHS, 414 F. Supp. 3d 475, 570 (S.D.N.Y. 2019) (concluding that a regulation authorizing the termination of all of a recipient's HHS funding if a recipient violates certain statutory conscience protections was unconstitutionally coercive). |
| 311. |
E.g., Freedom Network v. Trump, 830 F. Supp. 3d 681, 702 (N.D. Ill. 2026) (holding that the plaintiff was "likely to succeed on its claims" that two of the challenged conditions "violate its First Amendment rights"). But cf. Nat'l Ass'n of Diversity Officers in Higher Educ. v. Trump, 167 F.4th 86, 102–104 (4th Cir. 2026) (rejecting a facial First Amendment challenge to a similar condition). |