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Is the Stimulus Bill Constitutional?

This week, Governor Mark Sanford 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 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.

UPDATE: See also this post by Jack Balkin.

Related Posts (on one page):

  1. Is the Stimulus Bill Constitutional?
  2. The Stimulus and the Spending Clause:
brandon:
Finally someone is raising this issue!! I've been surprised that none of the VC bloggers have asked the question since the bill's passage.
3.15.2009 12:21pm
Angus:
Isn't it generally the state legislature that determines revenue items in each state? Rotunda seems to think that only the Governor has authority over state acceptance of federal funds.
3.15.2009 12:27pm
Soronel Haetir (mail):
Angus,

The problem comes in with the stimulus money bypass provision, in that it would appear to be immune from veto by the governor.

I find the non-bypass provision intereting as well, how is a governor empowered to accept money that has strings attached /without/ going through the state legislature?
3.15.2009 1:03pm
Allan Walstad (mail):
The whole point of the Constitution was to limit the federal government to a few specific roles. Of course the "stimulus package" is unconstitutional, but so is a lot of what the feds have been routinely doing since the New Deal and before. If they can impose a socialist retirement plan on the entire population, then they can do whatever they damn well please. Theoretically, the Supreme Court would stand in their way, but it's just nine political appointees and we've seen how that's worked out over time. I welcome Constitutional objections to each new encroachment, but unless people are willing to go back and challenge the entire edifice of federal over-stepping, the ratchet will continue its work generation by generation.
3.15.2009 1:03pm
non-native speaker:
3.15.2009 1:19pm
gattsuru (mail) (www):
Who'd actually have the standing to sue, here?
3.15.2009 1:21pm
MarkField (mail):
I can see the campaign slogan now: "Mark Sanford -- Just An Honest Nullifier".


The problem comes in with the stimulus money bypass provision, in that it would appear to be immune from veto by the governor.


What if the legislative vote to accept the money exceeds that necessary for a veto override?
3.15.2009 1:25pm
CHD:
Apologies for going slightly off topic, but does Mark Sanford really think that it is wise politically to pick a fight with the SC legislature over whether the people of his state will receive federal stimulus money?
3.15.2009 1:27pm
Brett Bellmore:

The commerce power does not support this law. The commerce power is very broad indeed, but there are limits.


The (interstate) commerce power does not support this law, and the commerce power ain't nearly so broad as the courts have been persuaded to pretend.

But since the only limit in practice on the commerce power is what the courts will take exception to, in practice it has essentially no limits. I would not be the slightest bit confident that the courts will find this to be over-reaching. If they regarded themselves as being in the business of enforcing constitutional limits on federal power, they'd have been striking down an awful lot of legislation over the years that they let pass.

The Lopez revolution in taking limits on the commerce clause power seriously died in the cradle. I wouldn't count on it being revived.
3.15.2009 1:27pm
Politics is raw (mail):
Apologies for going slightly off topic, but does Mark Sanford really think that it is wise politically to pick a fight with the SC legislature over whether the people of his state will receive federal stimulus money?

Exactly. And where is Gov. Sanford going to get the money to file the lawsuit? From appropriations? Why wouldn't the SC legislature defund the lawsuit?
3.15.2009 1:32pm
geokstr:
Does anyone know whether the legislatures can reject the so-called "stimulus" money if there happens to be a governor who wants it? I bet not. The rachet probably only works in one direction, like most liberal policies and programs.

It's a great way to sidestep any Republican objections to Democrat vote-buying at the state level. In those states where there is a Republican governor and a Democrat legislature, allow the legislature to overrule the governor. In those states with a Democrat governor and a Republican legislature, allow the governor to be the final say as far as acceptance is concerned.

All that's really necessary now is an amendment to allow mayors and county political leaders to take stimulus money no matter what anyone else says. That would take care of those few states left where the Republicans control both the governorship and the legislature.
3.15.2009 1:32pm
DiverDan (mail):
This is off the point, but does anyone know when Ron Rotunda joined the faculty at Chapman University Law School? I remember him very fondly from University of Illinois; when I was there he was not only an excellent professor in Con Law, but also faculty advisor to the University of Illinois Law Review (only then it was the "University of Illinois Law Forum"). I'm really kind of sad that Illinois lost him.
3.15.2009 1:35pm
Dilan Esper (mail) (www):
i agree it is unconstitutional to bypass the governor.

this does, however, hit at a sore spot i still have about the florida recount. the supreme court held 9-0 that the florida constitution could not be used to interpret florida law because the relevant us constitution provision referred to the 'legislature'.

by the court's logic, a governor's veto would be irrelevant too, beause that isn't an action of the legislature either and the only reason it would matter is because of the supposedly irrelevant state constitution.

i think it is much better to leave it to states to determine how their laws become effective, in all cases.
3.15.2009 2:01pm
ruuffles (mail) (www):

It's a great way to sidestep any Republican objections to Democrat vote-buying at the state level. In those states where there is a Republican governor and a Democrat legislature, allow the legislature to overrule the governor. In those states with a Democrat governor and a Republican legislature, allow the governor to be the final say as far as acceptance is concerned.

first of all, its Democratic noun. second of all, you'd run into equal protection issues when you give a different procedure to one set of states than others.
3.15.2009 2:05pm
ARCraig (mail):


this does, however, hit at a sore spot i still have about the florida recount. the supreme court held 9-0 that the florida constitution could not be used to interpret florida law because the relevant us constitution provision referred to the 'legislature'.

by the court's logic, a governor's veto would be irrelevant too, beause that isn't an action of the legislature either and the only reason it would matter is because of the supposedly irrelevant state constitution



The supreme court was grappling with federal constitutional provisions that specifically grant power to the state legislatures (specifically, the right to choose presidential electors). No one doubts that the US Constitution can impose provisions which override state constitutions- thus I can get elected to public office here in my home state of Arkansas, despite the fact that the state constitution would disqualify me as an unrepentant atheist.

The issue here is a mere act of congress presuming to interfere with the internal workings of the state government as laid out by its constitution. That's unprecedented, and more likely than not unconstitutional.



From a broader perspective, this whole fiasco is yet another reminder of why it's so unhealthy for our body politic for states to receive a large chunk of their revenue from Congressionally-allocated Federal tax dollars rather than their own stated-collected revenue streams, for which they must answer for much more directly to the voters.
3.15.2009 2:10pm
ARCraig (mail):

second of all, you'd run into equal protection issues when you give a different procedure to one set of states than others


What he's describing is exactly what has been passed into law, and I don't see how it's an "equal protection" issue given that the exact same legislature-empowering provision is applicable in all states. The fact that in some states the legislature/executive may or may not be of a certain political party whose positions will make this provision's use more likely isn't legally relevant.
3.15.2009 2:13pm
ruuffles (mail) (www):

In those states with a Democrat governor and a Republican legislature, allow the governor to be the final say as far as acceptance is concerned.

That has not been passed into law. Tennessee has a democratic governor who's considering reject some of the stimulus, and a republican (with power sharing in one house) legislature. How would the democratic governor have the final say in this case?
3.15.2009 2:25pm
ruuffles (mail) (www):

Congressionally-allocated Federal tax dollars rather than their own stated-collected revenue streams, for which they must answer for much more directly to the voters

Last time I checked, the US house and senate have direct elections.
3.15.2009 2:27pm
ruuffles (mail) (www):
Here the relevant passage from SC's constitution

SECTION 21. Bill or joint resolution must be signed or vetoed by Governor.

Every bill or joint resolution which shall have passed the General Assembly, except on a question of adjournment, shall, before it becomes a law, be presented to the Governor, and if he approves he shall sign it; if not, he shall return it, with his objections, to the house in which it originated, which shall enter the objections at large on its Journal and proceed to reconsider it.
3.15.2009 2:31pm
J. Aldridge:

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.


Not an ounce of evidence in the historical record to support such claims. Commerce clause was never a police power.

“It is best as it stands—The power of regulating trade between the States will protect them agst each other—Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves.” -- Oliver Ellsworth

"Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels employed in the trade are the only subjects of regulation. It can act on none other." --Monroe

Mr. Madison explained the regulation of commerce among the States was strictly “a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.” How could it be a negative provision? The power to lay taxes or duties on State exports was withheld, and thus, rendered the regulation of commerce among the States merely a negative provision.
3.15.2009 2:40pm
geokstr:

ruuffles:

In those states with a Democrat governor and a Republican legislature, allow the governor to be the final say as far as acceptance is concerned.

That has not been passed into law. Tennessee has a democratic governor who's considering reject some of the stimulus, and a republican (with power sharing in one house) legislature. How would the democratic governor have the final say in this case?

I'd have to speculate that this is the only case like it in the nation, if that is what is actually happening. In 98% (i.e, all the rest) of the states, the benefit will redound stricly to Democrats, who will be quite happy to accept all the free vote-buying money they can get.

I would be very interested in seeing exactly what provisions the Democrat governor is considering refusing, and whether they are even material to the total booty available, or perhaps there are a few provisions that might actually somehow (accidentally) benefit Republicans in that state. Maybe it's the porkulus earmarks that were secured by Republican congresscritters that are being resisted by the guv. Now that I could believe.

Not that I think this would be much different had McCain been elected, except the magnitude of all this boondoggle might have been slightly less, or in a somewhat different direction.

A pox on all the politicians' houses, even if they can remember how many they have, and/or they didn't get special mortgage terms on them, and/or didn't get a crook to help them qualify.
3.15.2009 2:54pm
Chico's Bail Bonds (mail):
Herbert Hoover is alive and well in the comment section of the Volokh Conspiracy.
3.15.2009 3:17pm
trad and anon (mail):
Does Anthony Kennedy really want to be a modern-day Owens Roberts, voting to strike down legislation written to combat a severe depression? I'm pretty sure the answer to that one is 'no.'
3.15.2009 3:48pm
Daniel Chapman (mail):
I look forward to voting for all democratics in the next election.
3.15.2009 3:59pm
John Rosenberg (mail) (www):
Does anyone see a connection to the recent voting rights case (Bartlett v. Strickland) decided by the Supreme Court? In that case the North Carolina constitution prohibited splitting counties into different electoral districts, but state officials decided that Section 2 of the Voting Rights Act required them to do so in order to increase the black population up to 39%. The question of whether a federal statute can override a state constitutional provision did not play a prominent part in the news coverage of that decision.
3.15.2009 4:00pm
Bama 1L:
The question of whether a federal statute can override a state constitutional provision did not play a prominent part in the news coverage of that decision.

It didn't play a significant role in the briefs or in the decision, either, because the answer--at least as applied to that type of case--is uncontroversial:


This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.


U.S. Const., art. VI, cl. 2.

A duly-enacted, constitutionally-authorized federal statute defeats a state constitution.
3.15.2009 4:14pm
Headscratcher:
This exercise seem too academic since the South Carolina legislature is controlled by Republicans by rather large margins:
Sen
27 R 19 D
House
73 R 51 D
Partisan Composition of state legislatures
3.15.2009 4:16pm
byomtov (mail):
I look forward to voting for all democratics in the next election.

While you're waiting, you might spend some time learning the difference between a noun and an adjective.
3.15.2009 4:16pm
DiverDan (mail):

A duly-enacted, constitutionally-authorized federal statute defeats a state constitution.


Bama1L - please look again -- the whole question here is whether or not the plan adopted by Congress is constitutionally authorized. Proving your conclusion by first assuming it to be true is known as circular reasoning; it's like a Dog chasing its own tail, it may be amusing, but it won't get you anywhere.
3.15.2009 4:20pm
Ira Brad Matetsky:
I think the analysis here has to probe a bit more deeply into how the stimulus bill is structured and what obligations a state might incur by accepting the funds.

Hypothetically, if Congress passed a law that said "$100 million in unrestricted federal funds shall be deposited in the treasury of each State, provided that the Governor signs a receipt to signify acceptance of the money. If the Governor declines to sign the receipt, the presiding officer of the State Senate may do so," then I do not see a significant constitutional question raised by the issue of who formally signifies the state's acceptance.

On the other hand, if Congress passed a law providing "$100 million in federal funds shall be deposited in the treasury of each state, provided that by accepting the funds, the State agrees that it will amend its rules and regulations to provide as follows ..." then a more complex issue is presented. I believe that some of the governors who have contemplated rejecting all or some of the stimulus funds have said their concern is not (or not only) over principles, but because they are concerned about potential long-term requirements associated with acceptance of the money. I haven't seen any detailed analysis of the merits of this concern.
3.15.2009 4:24pm
Bama 1L:
DiverDan, please note that my post responded only to the one immediately above it, discussing Bartlett. I stated no opinion about the stimulus bill.

If you have any suggestions how I could have made myself more clear and avoided confusing you, please share them.
3.15.2009 4:33pm
Cornellian (mail):
i agree it is unconstitutional to bypass the governor.

When I first read the bypass provision I thought it was problematic. I still think that, but I also think the question is a bit more nuanced than some people here seem to believe.

Some of the comments here seem to think that the governor, by default, accepts on behalf of the state, but why is that? Isn't that a function of state law that varies from one state to the next? What if state law said the governor and both houses of the legislature had to agree to accept? Wouldn't that mean that a federal law that required only acceptance by the governor be just as objectionable?

I don't think anyone could object, constitutionally, to a federal law that required a state to accept (or reject) funds in whatever manner state law provided for accepting or rejecting such funds. But can the federal government set the terms of what constitutes "acceptance" without regard to state law? I think that's problematic, particularly when such acceptance has the effect of generating binding obligations on the state. Could the feds enact a law saying the state's secretary of state could accept on behalf of the state? The state treasurer? The state AG?
3.15.2009 4:50pm
Ariel:
If farmer Filburn's wheat can be reached by the commerce power, I don't see why this would not work either.

FWIW, I think Wickard v. Filburn was wrongly decided and that there should be limits on the commerce power. But if Congress can reach one guy raising wheat for personal consumption, because of the effect that might have on interstate wheat commerce, I don't see any practical limits on the commerce power - the list in Art. 1 s. 8 becomes here are a bunch of specifically enumerated powers, and here's one that just says do whatever you want. But if you can touch one guy's wheat raising for personal consumption, you should be able to touch a transfer from some taxpayers (necessarily interstate) to others.

I haven't read the case law on general applicability, but it would surprise me if a law were generally applicable if it regulated the minimum wage in states, but would not be generally applicable if it regulated the receipt of interstate transfers of wealth.
3.15.2009 4:59pm
Bama 1L:
You want constitutional arguments on this bill, you can have 'em:

Some urge that the Commerce Clause does not authorize this spending. That is irrelevant, because the General Welfare Clause has been held to convey an independent spending power. People who are into that sort of thing will say that Madison didn't think so and the first fifty or so years of the country's history prove that it didn't. But Hamilton did think so. The important thing is that the Court has agreed with Hamilton since the New Deal: the government can tax and spend on anything it wants, because everything is part of the general welfare.

Congress can therefore evade practically any restriction on its powers by bribing the states--who uncontroversially have police powers to legislate on anything--to do what it can't do directly. Rehnquist and the whole "New Federalism" crowd signed off on this in South Dakota v. Dole. Congress can't directly control the drinking age, but it can get the states to do its will through its control of highway funds. As long as the states are free to say no to the money, subject to the loose limits explained by Professor Adler in his previous post, Congress can try to bribe them. If you think this is dumb, you're not alone, but I don't think you have a single justice on the Supreme Court on your side.

The question here is whether the governor must accept the bribe or someone else can do it for him. That is really the only issue. I don't know the answer to that question. It may get into the mechanics of state governments. Some have a unitary executive; some don't. Some give the governor a big role in legislation and budgets; some don't.

Accepting for the moment that the governor must be the one who accepts the bribe, is that because of some inherent property of governors or because all governors currently have some ability under the laws of their states to veto legislative acts?
3.15.2009 5:05pm
ReaderY:
Again, the difficulty here is that Congress did exactly the same thing some decades ago regarding abortion funding -- several states had constitutional provisions prohibiting acceptance of the money invalidated for precisely the issue on point here -- lower courts held that the expenditure of federal funds activates all state conditions on the funds' acceptance, including the state's own rules for how state acceptance decisions are to be made.
3.15.2009 5:39pm
ReaderY:
In other words, the dog has been chasing its tail right through the federal courts for some time.
3.15.2009 5:44pm
Hank Bowman, MD (mail) (www):
What about article IV, section 4?


It sounds as though requiring the states to take the money is not "...guarantee(ing) to every state in this union a republican form of government..."

Of course, the Constitution doesn't mean squat to the President or most of Congress.
3.15.2009 5:54pm
Bob from Ohio (mail):

does Mark Sanford really think that it is wise politically to pick a fight with the SC legislature over whether the people of his state will receive federal stimulus money?


I think he is more interested in 2012 and the GOP nomination for president. A large segment of GOP voters, unsure how large exactly,would eat this up.
3.15.2009 6:12pm
33yearprof:
Bill Van Alstyne had a related article in 1993. Here it is.

“Thirty Pieces of Silver” for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law, 16 Harv. J.L. &Pub. Pol'y 303 (1993).

Some organization really ought to sue.
3.15.2009 6:16pm
J. Aldridge:

Bama 1L said:

Some urge that the Commerce Clause does not authorize this spending. That is irrelevant, because the General Welfare Clause has been held to convey an independent spending power. People who are into that sort of thing will say that Madison didn't think so and the first fifty or so years of the country's history prove that it didn't. But Hamilton did think so. The important thing is that the Court has agreed with Hamilton since the New Deal: the government can tax and spend on anything it wants, because everything is part of the general welfare.

Actually, Hamilton did not. He agreed with Madison and Jefferson that the words "to provide for the general welfare" were limited to the express power given by the first sentence of the clause. That is, it was not a power to act outside of authorized powers in order to tax and spend on purely local matters.
3.15.2009 7:15pm
Arkady:
Then there's this: With South Carolina having the highest unemployment level in the nation, and as Governor Sanford rejects extension of unemployment benefits in stimulus bill,

Sanfords asking $3.5 million for beach home


Not the best timing, I'd say.
3.15.2009 8:02pm
Superheater:
We really should just admit that the 10th amendment, enumerated powers doctrine and any other legal or constitutional limits on the usurpation of political power by the Federal government have simply become inoperative.
3.15.2009 8:05pm
jim47:

I look forward to voting for all democratics in the next election.

You won't vote for any republicanists?
3.15.2009 8:08pm
Bama 1L:
J. Aldridge, that's not the point of disagreement I'm talking about. Hamilton had an expansive view of "the general welfare" as embracing all matters of national concern. Thus Congress could spend money on all sorts of things. Madison rejected the idea that the General Welfare clause let Congress spend money on anything not authorized by a specific enumerated power elsewhere in Art. I, § 8 or "necessary and proper" to such a power. I certainly agree that none of the named persons thought Congress could spend on purely local issues.

Of course this may tell us what the law once was and perhaps what it should be, but not what it is or is likely to become.
3.15.2009 8:31pm
pete (mail) (www):
If people are actually interested in why the governors are rejecting the money, at least in Texas, the resaon is that the money would go to unemployment benefits for part time workers, which would mean that employers would have to pay higher taxes.


Perry, an outspoken critic of the federal bailout bill, said accepting the funds would lead to additional taxing of Texas employers at a time when job creation is a top priority.

Perry said he’s opposed to the funds because there are too many strings.

The governor said acceptance of the stimulus funds would have caused “unprecedented change” in the state’s definition of unemployment, while increasing taxes on employers -- increases that he believes will cause companies to limit hiring and increase prices, forestalling an economic rebound.


And after the stimulus money is all used up the states that accepted it would still have to pay out benefits. And during a recession, it is not a good idea to raise the cost of hiring new employees.
3.15.2009 9:16pm
PlugInMonster:
I don't know why anyone pretends that the Constitution still exists. FDR shredded in the 1930s, and the American people didn't string up his carcass in response. That's when the America of Daniel Boone died.
3.15.2009 10:39pm
Jeff Walden (www):
I think he is more interested in 2012 and the GOP nomination for president. A large segment of GOP voters, unsure how large exactly,would eat this up.


Maybe, maybe not. This is not especially different from his past actions in responding to government overspending, which included bringing two pigs (Pork and Barrel) to the South Carolina House chambers to complain about the state legislature's ongoing addiction to it. Despite the fact that the legislature is Republican-dominated, he's gone head to head with them in the past on multiple occasions. In fact, the Pork and Barrel incident was a direct response to 99 and 105 overrides by the Senate and House, respectively, of his 106 budget vetoes one year.

Perhaps he has aspirations to become president, who could say but him, but turning down stimulus funds would not be out of character for him, given his actions pertaining to past overspending.
3.15.2009 11:07pm
A.:

I don't know why anyone pretends that the Constitution still exists. FDR shredded in the 1930s, and the American people didn't string up his carcass in response. That's when the America of Daniel Boone died.


Actually, it died during the Civil War. We had a war over it, and the limited government side lost. Sucks to be us. Maybe if the South (a) hadn't been so pig-headed about slavery and (b) had had the foresight to avoid tying its economy to a Luddite mode of production, the country (countries?) would still be fine. Or, judging from what every single industrialized government in the world looks like, maybe the drift towards stronger, more centralized government is an inevitable byproduct of technological (read: military) progress.
3.15.2009 11:42pm
J. Aldridge:
Bama 1L said: "Hamilton had an expansive view of "the general welfare" as embracing all matters of national concern. Thus Congress could spend money on all sorts of things."

The thing with Hamilton is, he had advocated for a powerful central national government with expansive powers. He lost. Therefore, his so-called "expansive view" is really nothing more than a perverted interpretation.

It is not difficult to understand the language if one considers where it came from: Article III of the Confederacy that read, "The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare."

I doubt there are many who would had argued the Confederacy could raise and spend money on whatever they pleased!
3.16.2009 12:26am
Redlands (mail):
Superheater -

We really should just admit that the 10th amendment, enumerated powers doctrine and any other legal or constitutional limits on the usurpation of political power by the Federal government have simply become inoperative.

And the Supreme Court has been a major co-conspirator. 9th &10th Amendments, privileges or immunities clause of the 14th, necessary &proper clause, contract clause, . . .. Ah, forget it. You get the general idea.
3.16.2009 12:28am
J. Aldridge:
A said: "Actually, it died during the Civil War. We had a war over it, and the limited government side lost."

Actually, radicals cheated to obtain their goals. They paid a big price with their so-called "Enforcement Acts" that lead to them being thrown out of power en masse.

Expansive government is the result of supreme court activism which discarded search for truth for writing fiction.
3.16.2009 12:37am
Sarcastro (www):
Yeah, America sure has sucked it up since 1860. And the US post-1940s has been a crapfest!

Most of this burden is in the lack of Bar killin' area.
3.16.2009 5:44am
MarkField (mail):

That's when the America of Daniel Boone died.


Ah yes -- Boone's influence on the Constitution was incalculable.

I feel pretty confident, by the way, that the America of Daniel Boone died the same day he did. That's how it works.
3.16.2009 10:54am
Gabriel McCall (mail):
Ah yes — Boone's influence on the Constitution was incalculable.


Maybe he meant Davy Crockett.
3.16.2009 11:30am
MarkField (mail):

Maybe he meant Davy Crockett.


I like the Disney version, myself. I still know the theme song by heart.
3.16.2009 11:59am
MCM (mail):
What about article IV, section 4?

It sounds as though requiring the states to take the money is not "...guarantee(ing) to every state in this union a republican form of government..."


Sorry, you missed the boat on this one by 160 years. This clause is non-justiciable; any dispute arising under it is inherently a political question.

Of course, the Constitution doesn't mean squat to the President or most of Congress.


Whatever it means to them, it's probably an improvement over "a goddamn piece of paper".
3.16.2009 12:30pm
MCM (mail):
Expansive government is the result of supreme court activism which discarded search for truth for writing fiction.


Seems you know a little about writing fiction yourself.
3.16.2009 12:31pm
PubliusFL:
J. Aldridge: The thing with Hamilton is, he had advocated for a powerful central national government with expansive powers. He lost. Therefore, his so-called "expansive view" is really nothing more than a perverted interpretation.

Hamilton lost regarding a general power to legislate for the general welfare. But he continued to argue that the final constitution included a power to spend for the general welfare. That view was adopted by the Federalist Party, which governed until 1801. See Hamilton's "Report on Manufactures." I personally think Madison's view of the clause makes a lot more sense, but in fairness the Hamiltonian view did have a lot of support from early on.
3.16.2009 1:58pm
Wordprof (mail) (www):
Since when has the 10th Amendment ever been honored, let alone the Enumerated Powers Clause of the Constitution?
3.16.2009 2:06pm
J. Aldridge:
PubliusFL wrote: "I personally think Madison's view of the clause makes a lot more sense, but in fairness the Hamiltonian view did have a lot of support from early on."

The Hamiltonian view is greatly misstated today. Had Congress operated in 1791 as they do today the Hamiltonian view would not have gained support by a single Federalists, that alone from the many anti-Federalists.
3.16.2009 2:47pm
Dilan Esper (mail) (www):
The supreme court was grappling with federal constitutional provisions that specifically grant power to the state legislatures (specifically, the right to choose presidential electors).

Well, then, let's say the Florida legislature voted in favor of a law saying "we will select our presidential electors with X procedure". Then the law is vetoed by the Governor. Under the Supreme Court's logic, that veto CAN'T matter. Because it isn't an act of the "legislature", any more than the determination of the Florida courts or the provisions of the Florida Constitution are acts of the "legislature".

Or let's say California passes an initiative to change its method of selection of electors. That can't be enforced either, right? Because the voters aren't the legislature.

The point is, the Court missed the forest for the trees. When the Constitution says "legislature", it is meaning "in the manner in which laws are enacted by the state legislature", which includes that the law is signed by the governor and withstands constitutional challenge in the courts.

And that same principle applies here. State law determines the procedures of legislative enactment. Congress can't circumvent them.
3.16.2009 4:22pm
Milhouse (www):
MCM:

Whatever it means to them, it's probably an improvement over "a goddamn piece of paper".

What on earth could you mean by that? I hope you're not trying to propagate the scurrilous lie that President Bush Jr called it that.
3.16.2009 11:14pm
Milhouse (www):
Dilan Esper:

Well, then, let's say the Florida legislature voted in favor of a law saying "we will select our presidential electors with X procedure". Then the law is vetoed by the Governor. Under the Supreme Court's logic, that veto CAN'T matter. Because it isn't an act of the "legislature", any more than the determination of the Florida courts or the provisions of the Florida Constitution are acts of the "legislature".

Or let's say California passes an initiative to change its method of selection of electors. That can't be enforced either, right? Because the voters aren't the legislature.

I'd say that's exactly right. Neither a governor nor a state's voters have the right to veto the state legislature's scheme for chusing electors. And it doesn't matter what the state's constitution has to say about the matter.

Suppose some federal law or constitutional provision laid some particular duty on the mayor of New York City. In exercising that duty, the City Council would have no right to override his decision, even by a unanimous vote.
3.16.2009 11:19pm
Dilan Esper (mail) (www):
Milhouse:

Your view is internally consistent (unliked the court's), but wrong. When we say an ghact of the legislature, we mean a valid law, not one that has been vetoed. Indeed, taking into account vetoed laws would be an administrative nightmare, as such laws aren't codified.

the court elevateds the literal meaning of legislature above what it must actually mean in context, which is that the state must pass a valid law determining how to select the electors.

Moreover, a duty placed on an official would work differently. Mayors can act on their own, but legislatures only act through duly enacted legislation.
3.17.2009 4:41am
markm (mail):

pete (mail) (www):
If people are actually interested in why the governors are rejecting the money, at least in Texas, the resaon is that the money would go to unemployment benefits for part time workers, which would mean that employers would have to pay higher taxes.

If accepting the money requires a change in state laws, taxes, or appropriations, then only legislation passed by the legislature and signed by the governor (or a veto override) will do.
3.17.2009 7:10am
wyswyg:

the supreme court held 9-0 that the florida constitution could not be used [by the SCOFLA] to interpret make up florida law because the relevant us constitution provision referred to the 'legislature'.


Fixed it for you.
3.17.2009 5:21pm
wyswyg:

Yeah, America sure has sucked it up since 1860.


More biting wit from Sarcasto.
3.17.2009 5:28pm
wyswyg:

does Mark Sanford really think that it is wise politically to pick a fight with the SC legislature over whether the people of his state will receive federal stimulus money?


This concern on the part of Democrats for Sanfords political future is touching.
3.17.2009 5:30pm

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