SPENDING CLAUSE—GRAVE DECEPTIONS: REMEDYING CEMETERY MISFEASANCE THROUGH CONGRESS’S CONDITIONAL SPENDING POWER IN THE AFTERMATH OF AFFORDABLE CARE ACT LITIGATION

Authors

Kady S. Huff

Abstract

In the United States, seventy-three percent of deaths each year result in traditional casket burials, yet the cemetery industry remains unregulated at the federal level. This Note argues that the federal government should intervene using its constitutional power to spend and encourage states to adopt “Minimum Grieving Consumer Protection Guidelines.” These guidelines seek to ensure that cemetery operations—like other trades—are legally bound to provide the most basic consumer protections. This Note first explains why the FTC, which regulates funeral providers, does not have jurisdiction to regulate the cemetery industry. Then this Note examines the patchwork of state regulations that currently exist and emphasizes the need for uniformity within the industry. This note offers two proposals for how Congress can encourage states to adopt guidelines for regulating the cemetery industry. Congress should either condition an appropriate percentage of the Medicaid grant on states’ compliance with the proposed Minimum Guidelines or condition the individual receipt of the Medicaid burial set-aside on state compliance with the above-mentioned guidelines.

Recommended Citation

Kady S. Huff, SPENDING CLAUSE—GRAVE DECEPTIONS: REMEDYING CEMETERY MISFEASANCE THROUGH CONGRESS’S CONDITIONAL SPENDING POWER IN THE AFTERMATH OF AFFORDABLE CARE ACT LITIGATION, 36 W. New Eng. L. Rev. 437 (2014), https://digitalcommons.law.wne.edu/lawreview/vol36/iss3/8