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.

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