Spending

Question 1

Source of Spending Power

Answer 1

Article 1, Sec. 8 (same as taxing power)

1) Congress can create incentives (make policy by handing out money)
2) Pay debts
3) Provide for common defense and general welfare

Question 2

Regulatory Spending

Answer 2

Okay when ancillary regulation is within some independent regulatory power of Congress

Not okay if spending is entirely regulatory with no independent source of regulation (improper means to an end)

Question 3

US v. Butler

Answer 3

(like Bailey to taxes) - raises questions about scope of spending power

Hamilton Approach

1) tax and spend for general welfare (beyond what is in Art 1, Sec 8)
2) can’t regulate for general welfare outside Art 1, Sec 8
- necessary regulation flows from tax and spend, but regulatory powers are limited

Example - can spend for education but nothing enumerated about regulating education

Question 4

South Dakota v. Dole

Answer 4

Federal highways/alcohol age
amount of $ small enough it’s not coercive

Scope of Spending Power

1) Pursuit of general welfare (Congress’s discretion)
2) Unambiguous (states have a choice)
3) Related to national interest
4) Other constitutional provisions might bar

Question 5

Sebelius Part 3 (Spending)

Answer 5

1) Commandeering (20% of budget)
2) Ex post facto - reliance on Medicaid is great; this would substantially change terms of program states already signed on to