Posted by Jonathan Adler:
Is the Stimulus Bill Constitutional?
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237133250
This week, Governor Mark Sanford [1]announced that South Carolina will
reject a large chunk of the stimulus funds targeted for his state. The
state legislature may disagree. If so, this could set up a
confrontation over the constitutionality of the stimulus, specifically
the provision that purports to enable state legislatures to bypass
Governors and accept funds on behalf of their state. Professor Ron
Rotunda [2]doubts this provision is constitutional. He writes:
If state law does not give the state legislature the right to
bypass the governor, how can Congress just change that law? Where
does Congress get the power to change a state constitution? . . .
The two main sources of power that might justify subsection (b) are
Congress' power over interstate commerce and its power to tax and
spend. The commerce power does not support this law. The commerce
power is very broad indeed, but there are limits. One important one
is that Congress can only use the commerce power to subject the
states to "generally applicable" law. For example, if Congress sets
the minimum wage at $7 an hour for all workers in interstate
commerce, that law can include state workers in interstate
commerce. But subsection (b) is not "generally applicable." By its
very nature it only governs states.
The second main source of federal power is the spending power,
allowing Congress to bribe the states to take certain actions. . .
.
The spending clause does not work here. Congress is not telling a
state, "You must change your state constitution before we will give
you a dime." Instead, Congress is simply telling the state, "We
have changed your state constitution so that we give more power to
the state legislature, without any pesky interference from the
governor."
Rotunda doubts the bypass provisions could survive court challenge. He
also notes such a suit could raise interesting severability issues,
potentially invalidating other aspects of the stimulus. Stay tuned.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/13/AR2009031300570.html
2.
http://www.chicagotribune.com/entertainment/arts/chi-perspec0315stimulusmar15,0,216570.story
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