Is the Stimulus Bill Unconstitutional?

Even if it is, someone would have to challenge it who has "standing." And it's not clear whether that would include governors or state legislatures.

But as Ronald Rotunda points out in the Chicago Tribune , for the states to accept a lot of that stim money, they must change their constitutions. The feds can't do. But it also points up a good reason why some Republican governors are resisting the stim money; not only would it force changes in their government, it would leave them with obligations after the money runs out that they may not be able to pay for:

The aphorism, he who pays the piper calls the tune, is one that Congress understands quite well. If the state accepts funds, it also accepts a host of restrictions. For example, the plan increases, temporarily, the money it sends to states to fund various welfare programs. To receive that money, states have to add thousands of new people to the welfare rolls. In two years, the federal largesse stops, but the new welfare recipients are still there.

Consequently, several governors have said that they might simply refuse the money. Most are Republican, but recently the Democratic governor of Tennessee has joined the chorus. The stimulus bill, for example, gives $7 billion to the states to add to their unemployment trust funds, but to receive this "gift," a state has to change its formula so that it makes more people eligible for benefits, which leaves a long-term obligation on the system.

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?

That's a good question. Rotunda thinks there are two ways Congress can get away with this constitutionally (or at least make the argument for it. One is the power of Congress to regulate interstate commerce. This would be a dubious claim even given the broad, expansive interpretation of the clause generally allowed.

The second justification is even more specious, relating to a spending clause that can force states to take certain actions. Rotunda uses the withholding of federal highway funds to states who don't raise the drinking age to 21. This, however, does not deal with spending Congress is threatening to withhold but rather with changing a state's constitution in order to force the state to accept the spending.

I have not heard of any challenges to the constitutionality of the stim bill made by states probably because there is some spending in there that most states will accept anyway. But once again, the fact that no one apparently read this monstrosity is causing trouble.

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