CRS Annotated Constitution

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An Unrestrained Federal Spending Power.—Little if any constitutional controversy marks the debate over the modern exercise of the spending power. There are, of course, “general restrictions,” the first of which is that the power must be used in pursuit of the general welfare.549 However, great deference is judicially accorded Congress’ decision that a spending program advances the general welfare,550 and the Court has suggested that the question whether a spending program provides for the general welfare may not even be judicially noticeable.551 Dispute, such as it is, turns on the conditioning of funds.

Conditional Grants–in–Aid.—In the Steward Machine Company case, it was a taxpayer who complained of the invasion of the state sovereignty, and the Court put great emphasis on the fact that the State was a willing partner in the plan of cooperation embodied in the Social Security Act.552 A decade later the right of Congress to impose conditions upon grants–in–aid over the objection of a State was squarely presented in Oklahoma v. CSC.553 The State objected to the enforcement of a provision of the Hatch Act, whereby its right to receive federal highway funds would be diminished in consequence of its failure to remove from office a member of the State Highway Commission found to have taken an active part in party politics while in office. Although it found that the State had asserted a legal right which entitled it to an adjudication[p.157]of its objection, the Court denied the relief sought on the ground that “[w]hile the United States is not concerned with, and has no power to regulate local political activities as such of State officials, it does have power to fix the terms upon which its money allotments to State shall be disbursed. . . . The end sought by Congress through the Hatch Act is better public service by requiring those who administer funds for national needs to abstain from active political partisanship. So even though the action taken by Congress does have effect upon certain activities within the State, it has never been thought that such effect made the federal act invalid.”554

“Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy.”555 Standards purporting to channel Congress’ discretion have been announced by the Court, but they amount to little more than hortatory admonitions.556 First, the conditions, like the spending itself, must advance the general welfare, but the decision of that rests largely if not wholly with Congress.557 Second, since the States may choose to receive or not receive the proffered funds, Congress must set out the conditions unambiguously, so that the States may rationally decide.558 Third, it is suggested in the cases that the conditions must be related to the federal interest for which the funds are expended,559 but, though it continues to repeat this standard, it has never found a spending condition that did not survive scrutiny under this part of the test.560 Fourth, the power to condition funds may not be used to induce the States to engage in[p.158]activities that would themselves be unconstitutional.561Fifth, the Court has suggested that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which “pressure turns into compulsion,”562 but again the Court has never found a congressional condition to be coercive in this sense.563 Certain federalism restraints on other federal powers seem not to be relevant to spending conditions.564

If a State accepts federal funds on conditions and then fails to follow the requirements, the usual remedy is federal administrative action to terminate the funding and to recoup funds the State has already received.565 But it is also clear that recipients and potential recipients in a particular program may ordinarily sue to compel the States to observe the standards.566 Finally, it should be noted that Congress has enacted a range of laws forbidding discrimination in federal assistance programs, that has considerable effect.567


549 South Dakota v. Dole, 483 U.S. 203, 207 (1987).
550 Id., 207 (citing Helvering v. Davis, 301 U.S. 619, 640, 645 (1937)).
551 Buckley v. Valeo, 424 U.S. 1, 90–91 (1976).
552 301 U.S. 548, 589, 590 (1937).
553 330 U.S. 127 (1947).
554 Id., 143.
555 Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (Chief Justice Burger announcing judgment of the Court).
556 See South Dakota v. Dole, 483 U.S. 203, 207–212 (1987).
557 Id., 207. See supra, nn. 549–551.
558 Ibid. The requirement appeared in Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). See also Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985).
559 South Dakota v. Dole, 483 U.S. 203, 207–208 (1987). See Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295 (1958).
560 The relationship in South Dakota v. Dole, 483 U.S. 203, 208–209 (1987), in which Congress conditioned access to certain highway funds on establishing a 21–years–of–age drinking qualification was that the purpose of both funds and condition was safe interstate travel. The federal interest in Oklahoma v. CSC, 330 U.S. 127, 143 (1947), as we have noted, was assuring proper administration of federal highway funds.
561 South Dakota v. Dole, 483 U.S. 203, 210–211 (1987).
562 Steward Machine Co. v. Davis, 301 U.S. 548, 589–590 (1937); South Dakota v. Dole, 483 U.S. 203, 211–212 (1987).
563 See North Carolina ex rel. Morrow v. Califano, 445 F.Supp. 532 (E.D.N.C. 1977) (three–judge court), affd. 435 U.S. 962 (1978).
564 South Dakota v. Dole, 483 U.S. 203, 210 (1987).
565 Bell v. New Jersey, 461 U.S. 773 (1983); Bennett v. New Jersey, 470 U.S. 632 (1985); Bennett v. Kentucky Dept. of Education, 470 U.S. 656 (1985).
566 E.g., King v. Smith, 392 U.S. 309 (1968); Rosado v. Wyman, 397 U.S. 397 (1970); Lau v. Nichols, 414 U.S. 563 (1974); Miller v. Youakim, 440 U.S. 125 (1979). Suits may be brought under 42 U.S.C. Sec. 1983 , see Maine v. Thiboutot, 448 U.S. 1 (1980), although in some instances the statutory conferral of rights may be too imprecise or vague for judicial enforcement. Compare Suter v. Artist M., 112S.Ct.1360 (1992), with Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418 (1987).
567 E.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d ; Title IX of the Educational Amendments of 1972, 20 U.S.C. Sec. 1681 ; Title V of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 .
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