Thursday, June 17, 2004

Nihil Tam Munitum Quod Non Expugnari Pecunia Possit

On Conditional Grants

I have hitherto assumed coercive block grants are questionable, constitutionally. In high school and collegiate debate, in conversations with friends on both sides of the aisle, the same urban legend was repeated; that the habit of Congress passing appropriations bills that doled out money to that states with strings attached was a dubious tactic from a constitutional perspective, and had never been meaningfully tested.

Imagine my surprise then, when I ran across South Dakota v. Dole (483 U.S. 203, 1987) where, of all people, Rehnquist wrote out a 7-2 decision upholding the tying of federal highway dollars to state implementation of a specific legal maximum blood alcohol content level, while driving. The case was extremely illustrative of the broader question, because this issue was one that the 21st Amendment (redacting Prohibition) left to the states. Obviously if on such an issue Congress can use federal funds to "suggest" a proper course, on any other issue, whether or not it is reserved for the states, such tactics are well within the pale.

The Constitution empowers Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Art. I, 8, cl. 1. Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power "to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." The breadth of this power was made clear in United States v. Butler, 297 U.S. 1, 66 (1936), where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." Thus, objectives not thought to be within Article I's "enumerated legislative fields," may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.


Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in 158 is a valid use of the spending power.

To think that this issue was settled in 1987 and somehow such a large population of well-educated citizens are still ignorant of this fact.


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