an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Last week I attended a terrific symposium put on by the University of Connecticut Law Review on "Is Our Constitutional Order Broken?" The keynote address was given by a certain member of this blog. (I'll give you three guesses as to who it was.) I thought I'd outline what I talked about there.
Meridith Whitney, the financial analyst who made a prescient call on the problems with bank balance sheets in 2007, released a report last month stating that several states are now in such bad fiscal shape that they will probably need a federal bailout in the coming years. The poster child for this concern is California, which now has the worst credit rating of any state and goes from one budget crisis to the next. California's problems can be attributed in part to its strange governmental structure, which includes a rule that you need a two-thirds supermajority in each legislative chamber to pass a budget and other limitations on taxing and spending imposed by a patchwork of voter initiatives.
The prospect that a state like California might default or need a bailout raises two interesting constitutional questions. The first is whether Congress can attach conditions to a bailout that would require a state to undertake substantial reforms of its constitution. I think the answer is yes. Under South Dakota v. Dole, Congress has broad authority to place strings on the receipt of federal money so long as there is some relationship or germaneness between the money and the terms. After all, the state is always free not to take the funds.
The much harder question is what happens if a state threatens to default unless it gets a bailout. In the case of a small state, this is not much of a threat. A default there would not cause any systemic problems. If California or another large state defaults, however, that's a different story. These states may be "too big to fail." What's worse, they know this. It is clear that Congress cannot just order a state not to default--that would run afoul of New York v. United States and the Tenth Amendment. Thus, if California comes to Congress for a bailout, the state is the one with the leverage. ("Give us a bailout on generous terms or else.") In effect, this would create the possibility of a "reverse unfunded mandate"--the federal government picking up the tab for a profligate state.
What can be done to address this issue? One possibility, I suppose, is that Congress could declare that a state in default is not "a republican form of government" under the Guarantee Clause and then order them not to default. That's a pretty heavy lift though, especially since states that defaulted in the past were never considered "not republican." The other thought is that Congress could threaten to withhold other federal spending from a renegade state. Would this be constitutional? I'm not sure. There's a difference between saying to a state, "Here's a gift with some conditions. Take it or leave it" and saying "Here's a gift. Take it or else we are going to kick you in the teeth." Nevertheless, that might be the only way to make a default so costly for the state that it would have to accept a bailout under stringent terms.
One reason we got into trouble in 2008 is that there were no default rules (or analysis) in place when "too big to fail" financial institutions started to fail. We'd better not make the same error when it comes to state governments.