Comments on: Clear Notice and the Spending Clause http://www.scotusblog.com/wp/clear-notice-and-the-spending-clause/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Ryan http://www.scotusblog.com/wp/clear-notice-and-the-spending-clause/comment-page-1/#comment-9994 Ryan Wed, 28 Jun 2006 16:08:05 +0000 http://www.scotusblog.com/wp/uncategorized/clear-notice-and-the-spending-clause/#comment-9994 Marty, this raises the interesting issue of whether administrative regulations can ever suffice to provide the requisite clear notice in the spending clause context. The Fourth Circuit in Virginia Dep't of Educ. v. Riley, 106 F.3d 559 (4th Cir. 1997)(en banc)essentially held that any condition must be in the text of the statute; an administrative regulation cannot impose a condition on the states in a spending program. The government's brief in Murphy seems to indicate its view is that while legislative history cannot serve to provide the requisite clear notice, an administrative regulation may. The opinion in Murphy does not directly address this issue, but Alito's reasoning that legislative history does not provide sufficient notice becuase it is not in the text of the statute itself may indicate that administrative regulations may be deemed insufficent as well. This is because any delegation for an agency to issue rules not specifically provided for in the text of the statute would have to be predicated on statutory ambiguity, an ambiguity which itself would seem to not satisfy the Pennhurst clear statement rule. Marty, this raises the interesting issue of whether administrative regulations can ever suffice to provide the requisite clear notice in the spending clause context.

The Fourth Circuit in Virginia Dep’t of Educ. v. Riley, 106 F.3d 559 (4th Cir. 1997)(en banc)essentially held that any condition must be in the text of the statute; an administrative regulation cannot impose a condition on the states in a spending program.

The government’s brief in Murphy seems to indicate its view is that while legislative history cannot serve to provide the requisite clear notice, an administrative regulation may.

The opinion in Murphy does not directly address this issue, but Alito’s reasoning that legislative history does not provide sufficient notice becuase it is not in the text of the statute itself may indicate that administrative regulations may be deemed insufficent as well.

This is because any delegation for an agency to issue rules not specifically provided for in the text of the statute would have to be predicated on statutory ambiguity, an ambiguity which itself would seem to not satisfy the Pennhurst clear statement rule.

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