Shredding the Constitution Under the Guise of Economic Stimulus

by Sal on March 16, 2009

in Economy,Law,Politics

Several Governors, most notably Gov. Mark Sanford (R-SC) and Gov. Rick Perry (R-TX), have refused stimulus funds, due to the enormous amount of strings attached.  Yet due to a provision in the stimulus bill itself, legislatures have the power to override the Governor’s decision, and it appears that at least in South Carolina, that provision may be exercised.  In yesterday’s Chicago Tribune, however, Chapman University school of Law professor Ronald Chapman argued that the provision is blatantly unconstitutional and would likely not survive a court challenge, because it may attempt to alter existing state law and state constitutions.

Congress may impose restrictions on receiving of federal funds, but they may not change the state-created processes and procedures for accepting those funds, making laws, or any other such thing.  For example, Congress could not pass a law stating that any veto issued by a Governor could be overridden by a simple majority vote of the legislature, or that the Governors of all states have the right to ignore enforcement of legislation they don’t agree with.  States have Constitutions and Laws, and the principle of federalism does not allow the Federal Government to interfere with those laws except in Constitutionally-permitted ways.  Chapman expands on the powers that Congress has in relation to this case:

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.”

Chapman concludes that the provision will likely not survive a court challenge because it is a blatant violation of federalism, and a decision to the contrary will shred from the Constitution what last vestiges of federalism we still have.  The question remains, if this provision is deemed unconstitutional, will the entirety of the stimulus be thrown out, as it appears to contain no severability clause?  Since I am not a lawyer, I’ll leave that question to the attorneys among us.

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