When congress redistributes funds between the states that is fiscal redistribution

An increased federal role may be necessary, but whether it is legally valid or politically viable is another matter. The validity of all the models depends on the scope of federal power. The Supreme Court has interpreted the Tenth Amendment's protection of states' rights to forbid the federal government from ordering states to pass laws or implement federal programs. 74 Consequently, the federal government could not simply mandate states and localities to run their educational systems in accordance with federal standards. So far the Court has not used the Tenth Amendment to limit the federal spending power. Thus, strings attached to federal money, as with most of the existing federal interventions into public education, is currently an available route. 75 Whether the Court would invoke [*406] the Tenth Amendment if the federal government tried to use the spending power to fully finance public education and prohibit state and local supplementation, to take over the states' role in superintending local school districts, or to totally federalize education and establish a federal public school system, is hard to say and likely depends on the ideological tilt of the Court at the time. The basis of a decision striking down federal intervention would likely be that public education is a traditional state function that the federal government may control to a limited degree but not so extensively as per the three models. 76 While such a decision is certainly conceivable, my view is that the extent of the federal role should be treated as a political question, on the ground that tradition should not stand in the way of progress in education and that the political process is the appropriate place to resolve whether an increased federal role would be progressive. 77 [FOOTNOTE 77 BEGINS] See, e.g., Erwin Chemerinsky, Protecting the Spending Power, 4 Chapman L. Rev. 89, 89 (2001) (arguing that "Congress's spending power should be broadly interpreted" and that "the Tenth Amendment should not be applied as a limit on the spending power or on Congress's ability to place conditions on its spending"); Aviam Soifer, Truisms that Never Will Be True: The Tenth Amendment and the Spending Power, 52 U. Colo. L. Rev. 793, 800 (1986) (arguing that "the Tenth Amendment provides no constitutionally enforceable barrier against congressional action"). But see Lynn A. Baker, The Spending Power and the Federalist Revival, 4 Chapman L. Rev. 195, 198 (2001) (arguing that "the modern Congress regularly uses fiscal redistribution among the states and conditional federal spending to impinge, intentionally or unintentionally, on the autonomy that the Framers sought to guarantee the states," that "these intrusions on state autonomy reduce aggregate social welfare," that "the states cannot protect themselves through the federal political process against Congress's exercise of its spending power," and that the Court should be willing to limit Congress's spending power in order to protect states' rights). [FOOTNOTE 77 ENDS]