While most pundits debate the relative effectiveness of tax cuts and direct government spending, Ronald D. Rotunda of the Chicago Tribune questions the constitutionality of some portions of the new stimulus law. Here’s an excerpt:
Because some governors might not accept the money, Congress added a unique provision, in subsection 1607(b): “If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.”
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?
Rotunda goes on to discuss why two plausible justifications for this provision, the commerce clause and the spending power of Congress (which basically allows Congress to bribe states to take certain actions, like it does with drinking age laws), are not applicable in this case. The commerce clause only allows Congress to subjugate states to “generally applicable laws” like minimum wage, and this law, by its very nature, targets states specifically and is not relevant outside of the context of specific states. The spending clause is also non-applicable because nowhere in this clause does Congress have permission to go in and single-handedly change a state’s constitution.
The author doubts that section (b) will survive any sort of constitutional challenge, but whether or not this will invalidate the entire stimulus bill is yet to be seen. More analysis here on VC, where I found the original link to the story.
