Power to Spend

Question 1

There is ____ spending power in the Consti

Answer 1

no express

Question 2

What is the Madison view of the spending power

Answer 2

Congress can only spend pursuant to enumerated powers (including NP) because that’s where the authority comes from

Question 3

Hamilton view of spending power

Answer 3

Implied in taxing power –> Cong general spending power to provide for the general welfare

Question 4

Hamilton’s view of General welfare was held in ___ to be required to be __

Answer 4

Butler, national not local

Question 5

Helvering says Court ____ for what’s general welfare

Answer 5

has discretion

Question 6

Dole says Congress may use the spending power to ___

Answer 6

achieve aims not within enumerated powers

Question 7

According to Dole, Congress can condition federal funds on state taking certain actions even if ___

Answer 7

Cong could not require it to take them

Question 8

Sebelius says ___ let Cong ensure funds are spent to further “general welfare”

Answer 8

conditions

Question 9

For modern purposes the most significant question involving the spending power is the ____

Answer 9

scope of conditions Cong can attach to appropriations

Question 10

Source of the spending power traditionally assumed to be in the ___

Answer 10

general welfare clause

Question 11

The Butler SC endorses ___ view over ___ view

Answer 11

Hamilton, Madison

Question 12

Butler says there is a power to tax and after the word excise ___

Answer 12

a separate general power to spend for the General Welfare

Question 13

Hamburger critique of Butler (1)

Answer 13

really a limit on taxing power, not an independent spending power

Question 14

Hamburger critique of Butler (2)

Answer 14

Butler intepretation means Cong can use conditions for whatever it wishes (allow to regulate indirectly on things it normally could not)

Question 15

Dole: To regulate drinking age, Cong will use ___

Answer 15

highway funding

Question 16

Hamburger thinks conditions are an ___ in the Const

Answer 16

evasion of the enumerated powers

Question 17

Easterbrook argument for conditions

Answer 17

Conditions function like a contract

Question 18

Easterbrook counterargument

Answer 18

some things we can’t K for + power dynamic between govt and individual

Question 19

___ says that Courts should defer substantially to Cong when deciding if for General Welfare

Answer 19

Helvering

Question 20

Steward Machine Co. says conditions cannot be so coercive to pass the point where ___

Answer 20

pressure becomes compulsion

Question 21

In Dole, the conditions ____ too compulsive

Answer 21

were NOT

Question 22

In Dole, the condition was not too compulsive because __

Answer 22

only lose small portion of highway funds (5%)

Question 23

In Sebelius, the conditions ___ too compulsive

Answer 23

were

Question 24

In Sebelius, it was too coercive because Cong was threatening to ___

Answer 24

revoke pre-existing Medicaid funding if states don’t accept expansion (gun to the head)

Question 25

Hamburger critique of coercion requirement

Answer 25

shouldn’t be one since about federalism and freedom of self-govt

Question 26

Also conditions must be ___ and ___

Answer 26

germane (relevant), proportionate

Question 27

Germane means that conditions on fed grants may be illegit if they are ___

Answer 27

unrelated to the fed interest in particular projects

Question 28

Dole majority version of germane

Answer 28

highway funds and drinking age serve same purpose of promoting highway safety

Question 29

Dole O’Connor dissent version of germane

Answer 29

germaneness is more demanding –> must be relevant to ensuring underlying program achieves its purposes –> drinking age unlikely to because over and under inclusive

Question 30

First general limit on spending power

Answer 30

in pursuit of general welfare (but Helvering says defer substantially to Cong so not much of a limit_

Question 31

Second general limit on spending power

Answer 31

coercion vs. pressure (Steward, Dole, Sebelius)

Question 32

Third general limit on spending power

Answer 32

germane and proportionate (Dole)

Question 33

Fourth general limit on spending power

Answer 33

other Consti provisions (like Bill of Rights) may provide independent bar

Question 34

Bill of Rights prohibition is __ because it says power cannot be induced to get States to engage in activities ___

Answer 34

narrow, that would otherwise be unconstitutional

Question 35

What was the Assumption controversy

Answer 35

assumption of state debts after revolutionary war whether or not justified by Cong spending power to promote general welfare

Question 36

Objection to assumption

Answer 36

consolidate power in national govt, Const power to pay debts of US not particular states

Question 37

What was Savannah Fire debate

Answer 37

whether Cong had the power to provide financial aid to incinerated port city of Savannah

Question 38

Arguments for Savannah relie

Answer 38

humanity might trump formal Consti requirements, relief national because of importance of the port

Question 39

Arguments against Savannah relief

Answer 39

Const doesn’t authorize, dangerous precedent, local use

Question 40

What is moral hazard argument in savannah

Answer 40

if govt steps in, states might get rid of welfare programs or discourage people from getting their own insurance

Question 41

Examples of things that benefits localities that are also for the general welfare

Answer 41

lighthouses, customs

Question 42

Hamburger thinks that spending must be general not local BUT spending ___

Answer 42

on local thing can be for the general interest

Question 43

Hamuburger thinks giving money to particular states/localities is more ___

Answer 43

clearly unconstitutional

Question 44

Today a ____ of state budgets come from the federal govt

Answer 44

a large portion

Question 45

The majority view in Butler is self-contradictory because it claims spending power is ____ but cannot be used to ___

Answer 45

not limited to enumerated, indirectly accomplish anything that couldn’t be achieved by enumerated

Question 46

Butler holding

Answer 46

Act regulates ag production which is beyond powers delegated to federal govt so it can’t indirectly achieve by taxing and spending to purchase compliance

Question 47

Helvering is about

Answer 47

payments of Old age benefits under SSA

Question 48

the problem with conditions is that the fed govt ___

Answer 48

increasingly regulates by placing conditions on its generosity

Question 49

Dole basically says that Cong can __ but not ___ states to regulate on its behalf

Answer 49

pay, commandeer

Question 50

If a state decision were direct, there would be a ___ BUT if done via condition there is less ___

Answer 50

public debate, public input (privatize policy)

Question 51

Hamburger thinks conditions have become a ___ alongside law and regulation

Answer 51

third mode of control

Question 52

Hamburger thinks sometimes regulatory conditions can be ____ like in ___

Answer 52

good, Dole

Question 53

Hamburger thinks conditions defeat ___ and ____ doctrine

Answer 53

federalism, anti-commandeering

Question 54

The standard solution is to conclude that consent _____ otherwise unconstitutional violations but creates problem that govt can ___

Answer 54

excuses, rely on consent to evade many of Const requirements

Question 55

BUT the Const’s limits on the govt are ___

Answer 55

legal limits imposed with the consent of the people so private or state consent shouldn’t alter these limits

Question 56

The Dole majority assumes money going to particular jdx is ___

Answer 56

still within the general welfare

Question 57

In Sebelius, the individual mandate could not be held up as part of ___ but was under __

Answer 57

Cong power under CC, taxing power

Question 58

In Sebelius, the individual mandate not under CC because ___

Answer 58

difference between regulating activity taking place and ordering individuals to engage

Question 59

In Sebelius, Roberts is trying to draw a distinction without ___

Answer 59

overturning CC precedent (worried about weight on already strained CC)

Question 60

In Ginsburg Sebelius dissent she essentially acknoweldges there are ___ on the CC

Answer 60

no limits

Question 61

Hamburger thinks neither side is unreasonable in Sebelius, they are both trying to make ___

Answer 61

minimally coherent doctrine in wake of eviscerating CC

Question 62

Roberts in Sebelius relies on a _____ of Const avoidance doctrine that ___ judicial power

Answer 62

quite extreme version, elevates

Question 63

Roberts Consti avoidacne – if statute two possible meanings and one violates Const court should __.. Courts don’t need to decide the most natural interpretation of the law but only one that is ___

Answer 63

adopt meaning that does not do so, fairly possible

Question 64

Sebelius is Roberts doing a ___

Answer 64

rescue mission for a popular law (role of the court?)

Question 65

Locke critique of Roberts in Sebelius

Answer 65

for society to work must be system of unbiased adjudicators, judges should follow the law wherever it leads

Question 66

Costs to rescue mission for popular law

Answer 66

(1) risks effectiveness of policy (2) moral hazard, Court can just fix badly drafted laws (3) undermines Consti (4) tarnishes court reputation