Power to Spend Flashcards
There is ____ spending power in the Consti
no express
What is the Madison view of the spending power
Congress can only spend pursuant to enumerated powers (including NP) because that’s where the authority comes from
Hamilton view of spending power
Implied in taxing power –> Cong general spending power to provide for the general welfare
Hamilton’s view of General welfare was held in ___ to be required to be __
Butler, national not local
Helvering says Court ____ for what’s general welfare
has discretion
Dole says Congress may use the spending power to ___
achieve aims not within enumerated powers
According to Dole, Congress can condition federal funds on state taking certain actions even if ___
Cong could not require it to take them
Sebelius says ___ let Cong ensure funds are spent to further “general welfare”
conditions
For modern purposes the most significant question involving the spending power is the ____
scope of conditions Cong can attach to appropriations
Source of the spending power traditionally assumed to be in the ___
general welfare clause
The Butler SC endorses ___ view over ___ view
Hamilton, Madison
Butler says there is a power to tax and after the word excise ___
a separate general power to spend for the General Welfare
Hamburger critique of Butler (1)
really a limit on taxing power, not an independent spending power
Hamburger critique of Butler (2)
Butler intepretation means Cong can use conditions for whatever it wishes (allow to regulate indirectly on things it normally could not)
Dole: To regulate drinking age, Cong will use ___
highway funding
Hamburger thinks conditions are an ___ in the Const
evasion of the enumerated powers
Easterbrook argument for conditions
Conditions function like a contract
Easterbrook counterargument
some things we can’t K for + power dynamic between govt and individual
___ says that Courts should defer substantially to Cong when deciding if for General Welfare
Helvering
Steward Machine Co. says conditions cannot be so coercive to pass the point where ___
pressure becomes compulsion
In Dole, the conditions ____ too compulsive
were NOT
In Dole, the condition was not too compulsive because __
only lose small portion of highway funds (5%)
In Sebelius, the conditions ___ too compulsive
were
In Sebelius, it was too coercive because Cong was threatening to ___
revoke pre-existing Medicaid funding if states don’t accept expansion (gun to the head)
Hamburger critique of coercion requirement
shouldn’t be one since about federalism and freedom of self-govt
Also conditions must be ___ and ___
germane (relevant), proportionate
Germane means that conditions on fed grants may be illegit if they are ___
unrelated to the fed interest in particular projects
Dole majority version of germane
highway funds and drinking age serve same purpose of promoting highway safety
Dole O’Connor dissent version of germane
germaneness is more demanding –> must be relevant to ensuring underlying program achieves its purposes –> drinking age unlikely to because over and under inclusive
First general limit on spending power
in pursuit of general welfare (but Helvering says defer substantially to Cong so not much of a limit_
Second general limit on spending power
coercion vs. pressure (Steward, Dole, Sebelius)
Third general limit on spending power
germane and proportionate (Dole)
Fourth general limit on spending power
other Consti provisions (like Bill of Rights) may provide independent bar
Bill of Rights prohibition is __ because it says power cannot be induced to get States to engage in activities ___
narrow, that would otherwise be unconstitutional
What was the Assumption controversy
assumption of state debts after revolutionary war whether or not justified by Cong spending power to promote general welfare
Objection to assumption
consolidate power in national govt, Const power to pay debts of US not particular states
What was Savannah Fire debate
whether Cong had the power to provide financial aid to incinerated port city of Savannah
Arguments for Savannah relie
humanity might trump formal Consti requirements, relief national because of importance of the port
Arguments against Savannah relief
Const doesn’t authorize, dangerous precedent, local use
What is moral hazard argument in savannah
if govt steps in, states might get rid of welfare programs or discourage people from getting their own insurance
Examples of things that benefits localities that are also for the general welfare
lighthouses, customs
Hamburger thinks that spending must be general not local BUT spending ___
on local thing can be for the general interest
Hamuburger thinks giving money to particular states/localities is more ___
clearly unconstitutional
Today a ____ of state budgets come from the federal govt
a large portion
The majority view in Butler is self-contradictory because it claims spending power is ____ but cannot be used to ___
not limited to enumerated, indirectly accomplish anything that couldn’t be achieved by enumerated
Butler holding
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
Helvering is about
payments of Old age benefits under SSA
the problem with conditions is that the fed govt ___
increasingly regulates by placing conditions on its generosity
Dole basically says that Cong can __ but not ___ states to regulate on its behalf
pay, commandeer
If a state decision were direct, there would be a ___ BUT if done via condition there is less ___
public debate, public input (privatize policy)
Hamburger thinks conditions have become a ___ alongside law and regulation
third mode of control
Hamburger thinks sometimes regulatory conditions can be ____ like in ___
good, Dole
Hamburger thinks conditions defeat ___ and ____ doctrine
federalism, anti-commandeering
The standard solution is to conclude that consent _____ otherwise unconstitutional violations but creates problem that govt can ___
excuses, rely on consent to evade many of Const requirements
BUT the Const’s limits on the govt are ___
legal limits imposed with the consent of the people so private or state consent shouldn’t alter these limits
The Dole majority assumes money going to particular jdx is ___
still within the general welfare
In Sebelius, the individual mandate could not be held up as part of ___ but was under __
Cong power under CC, taxing power
In Sebelius, the individual mandate not under CC because ___
difference between regulating activity taking place and ordering individuals to engage
In Sebelius, Roberts is trying to draw a distinction without ___
overturning CC precedent (worried about weight on already strained CC)
In Ginsburg Sebelius dissent she essentially acknoweldges there are ___ on the CC
no limits
Hamburger thinks neither side is unreasonable in Sebelius, they are both trying to make ___
minimally coherent doctrine in wake of eviscerating CC
Roberts in Sebelius relies on a _____ of Const avoidance doctrine that ___ judicial power
quite extreme version, elevates
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 ___
adopt meaning that does not do so, fairly possible
Sebelius is Roberts doing a ___
rescue mission for a popular law (role of the court?)
Locke critique of Roberts in Sebelius
for society to work must be system of unbiased adjudicators, judges should follow the law wherever it leads
Costs to rescue mission for popular law
(1) risks effectiveness of policy (2) moral hazard, Court can just fix badly drafted laws (3) undermines Consti (4) tarnishes court reputation
