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The Stimulus and the Spending Clause:

Several governors may reject some portion of the stimulus funding for their state. In a recent post, Jack Balkin suggests that "the governors' threats to refuse federal money actually help establish the constitutionality of the stimulus bill, and its proposed bargain of federal funding in return for state regulatory obligations." He writes:

if one or more states seriously suggests that they may refuse some or all of the stimulus money because of the federal strings attached, this tends to demonstrate that the stimulus bill is a constitutional exercise of the spending power: it is evidence that pressure to accept federal monies has not turned into compulsion, that a genuine offer is being made and that each state can still freely decide whether or not to accept the money.
I disagree, as I explain below.

Related Posts (on one page):

  1. Is the Stimulus Bill Constitutional?
  2. The Stimulus and the Spending Clause:
YF:
Doesn't the presence of Governors refusing the money go to the potential 5th restraint? If some governor's are rejecting the funds, then it's less likely that the pressure has turned into compulsion.
3.3.2009 7:15pm
Thorley Winston (mail) (www):
Good analysis Professor Adler, regarding the Dole test, it seems to me that if the legislation doesn't explicitly contain language stating words to the effect of "all or nothing," then it fails the requirement that the conditions be clear and unambiguous and Schumer's is simply trying to impose a condition after-the-fact that he and the other supporters of the bill were too incompetent to include when they were rushing to loot the taxpayer pass a poorly drafted bill.

As far as the attempt to create a by-pass around State governors by allowing the State legislatures to accept them with a concurrent resolution, do the conditions that attach the funding if its accepted by the governor apply if they're accepted by the legislature instead?

I think it would be interesting if a State legislature passed a resolution accept a portion of the funding that was rejected by the governor and then spent the money without paying heed to the strings that would have attached if accepted by the governor by arguing either that the legislation didn't specify that the if the legislature accepts funding that it has to accept the conditions applicable if the governor accepts them* and that the only way the legislative bypass doesn't circumvent the States' internal structures is to essentially give them the funding without any strings attached.

* There may be language in the rest of the bill that says that, but it doesn't appear in the portion cited by Professor Adler.
3.3.2009 7:39pm
Bruce Hayden (mail):
I think it would be interesting if a State legislature passed a resolution accept a portion of the funding that was rejected by the governor and then spent the money without paying heed to the strings that would have attached if accepted by the governor by arguing either that the legislation didn't specify that the if the legislature accepts funding that it has to accept the conditions applicable if the governor accepts them* and that the only way the legislative bypass doesn't circumvent the States' internal structures is to essentially give them the funding without any strings attached.
That is interesting. How does a state legislature spend money without approval of the governor (assuming that we are not talking veto override here)?
3.3.2009 8:03pm
ReaderY:
I agree with the logic of the argument, but logic has never been the problem. The principle problem is the string of cases striking down various state constitutional provisions prohibiting spending state money on various sensitive matters, notably abortion. The reasoning was that because the governors had accepted the money, as provided by federal law, the state was bound and any state constitutional provision saying a governor couldn't make such a decision was overridden by the Supremacy clause.

I don't see the difference betwen this case and the no-state-money-for-abortion constitutional provisions. These cases seem to stand for the proposition the Congress has the power to define who decides whether to accept federal money and bind the state to the "contract" in a way that overrides whatever the state's own constitution says about the subject.

If Congress has the power to decide how a state can be bound in a way that overrides conflicting state constitutional provisions about what state officials are authorized to do, there wouldn't seem to be any need to refer to any official state-recognized authority at all. Congress could just as well provide that any concerned citizen or a particular individual of its own choosing has the power to accept the money on the state's behalf and bind the state, and once bound any other contrary state constitutional provisions would then become just as invalid as the no-funding-for-abortion provisions.

Is there a difference between the cases striking down no-funding-for-abortion constitutional provisions and this case? If so, what's the difference?
3.3.2009 8:25pm
Allan Walstad (mail):
The money is being extracted from the people of the various states. Any state that refuses to go along with the federal strings is in effect paying a fine for its choice. If the sum is small, it might be considered incidental. But on the scale of the Obama/Pelosi stimulus package, is this not a coercive situation on its face? Or let me put it another way: is there no limit to the net loss of resources by a state beyond which the situation is unconstitutionally coercive by its very nature?
3.3.2009 8:28pm
Marvin (mail):
The real problem is that the states have no representation in the Federal Government -- since all Representatives and Senators are directly elected by the people.

The Senate was originally designed to represent the state governments.
Since that was changed to direct election of Senators, there has been little restraint on the Federal Government dictating to the States.
3.3.2009 9:24pm
Splunge:
So this legislative-bypass hokey pokey was written by professional lawyers, Congresscritters who, it's said, know the Constitution inside out, and have the wisdom to regulate a good third of the massive complex machine that is an economy of 300 million souls by thinking hard about it for a day or two.

Do I, Joe Average, conclude that (1) Congressmen are, weirdly enough, complete clueless dweebs about the one area of human endeavour about which one would have naively assumed they are well informed, namely Constitutional law? Or (2) that they're cynical brigands who deliberately wrote Constitutionally iffy language into a law because they figure they have the political support to steamroll any principled objection?

Either way, the idea that I'm supposed to trust these scoundrels and/or fools is alarming.
3.3.2009 11:16pm
Vermando (mail) (www):
Isn't YF right on this? Doesn't their refusal go to the fifth criteria?
3.4.2009 1:50am
Jonathan H. Adler (mail) (www):
YF &Vermando --

Sure. A state's refusal would show that a given state was not coerced, but this has no real significance. First, and most importantly, courts have not struck down conditional spending to states on the generic ground that it is "coercive," so showing that a given exercise of the power is not coercive does not show that the conditional spending is constitutional. What matters is whether the other criteria -- particularly the third and fourth -- are implicated.

Second, it is also important to note that not all states are in equivalent positions vis-a-vis the federal government. Some states are net recipients of federal funds, others are donor states. Thus, even if one that the "coercion" test were particularly relevant in evaluating the constitutionality, one state's acceptance of funds and the relevant conditions would not prove that the conditional spending is not coercive for another state. Think, for instance, of a case in which the federally imposed conditions require a handful of states to adopt policies that other states have already imposed. The latter states will take the money because they already meet the conditions, and so they are clearly not coerced. But this does not tell us that the conditional spending is not coercive for the remaining states which would acutally need to alter their policies to receive the money.

JHA
3.4.2009 9:00am
DoDoGuRu:
What would happen if, say, the governors accepted the money but simply rejected the strings?
3.4.2009 9:18am
NTB24601:
Jonathan H. Adler: "What matters is whether the other criteria -- particularly the third and fourth -- are implicated."

Professor Adler's analysis makes me wonder whether courts look beyond the statutory language in analyzing the third criteria. If so, then I would think that refusal by some states supports an argument that the states have notice of the legal obligations. When some states refuse and other states accept, that looks to me more like a real choice based on actual awareness of the consequences than when all states accept.

Second, it is also important to note that not all states are in equivalent positions vis-a-vis the federal government. Some states are net recipients of federal funds, others are donor states.

I was under the impression that most of the states that have considered rejecting funds are net recipients. I believe that's the true of Lousinia, where Governor Jindal has indicated that he may reject unemployment compensation funds.

"If, for instance, a state legislature were to pass a concurrent resolution accepting federal funds for the state that was subsequently vetoed by a state governor in accordance with state law, it seems quite clear to me that federal law could not override that determination in a manner inconsistent with state law, as state governments are only capable of consenting to the receipt of federal funds in accordance with state law."

Assuming Professors Adler and Balkin's proposition is correct (and it sounds correct to me, but I haven't researched it), shouldn't courts favor an interpretation of Sec. 1607 (b) that renders it constitutional by holding that "adoption of a concurrent resolution" occurs only where the resolution is not vetoed or where the veto is overridden consistent with the state's internal structure?

ReaderY: Is there a difference between the cases striking down no-funding-for-abortion constitutional provisions and this case? If so, what's the difference?

Can you provide citations to some of these cases? I am interested in reading them, but I don't have ready access to a legal search function at the moment.
3.4.2009 10:28am
GatoRat:
I agree with Splung, though I go with the "complete clueless dweebs" supposition.
3.4.2009 11:20am
FWB (mail):
As per Article I, Section 8, paragraph 1, spending is restricted to "pay the debts, and to provide for the common Defence, and general Welfare of the United States;" Now the "United States" is a separate Body-politic from the States and from the People. Thus the restriction explicitly states that expenditures must act on the Body-politic, the United States.

Would one read the above restriction as allowing the federal government to pay the debts of individuals? of States? If so, for how many and at what level?

Or does the above quote mean that the Feds can spend only on what it takes to operate the Union?

In the case of the general Welfare, if spending on individual persons or individual States is included, how many individuals or how many states must be aided by the spending for it to qualify as "general Welfare"? One, some, all?

And wasn't it in Gibbons V Ogden, that THE COURT stated "Congress is not empowered to tax for those purposes which are within the exclusive province of the States"? So how does Congress constitutionally spend monies for objects upon which Congress has no direct authority to tax because those objects were left to the authority of the states?

Just a few philosophical questions.

Dominus providebit!
3.4.2009 12:53pm

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