Taxing, Spending, and Anti-Commandeering - Sept. 28 and Oct. 3

Question 1

Can Congress require a state legislature to enact state legislation to implement a federal law? (Q)

Answer 1

No. Congress cannot commandeer state governments by requiring them to enact a state law to implement a federal law. Congress can:

impose direct regulations that are within its constitutional authority to enact and
offer incentives to state legislatures to enact state laws.

However, Congress cannot command a state legislature to pass a state statute.

Question 2

Concerned about the failure of the states to address the problem of teen suicide, Congress enacted a law requiring all states to establish teen-suicide-prevention programs. Congress claimed the law was necessary to promote the general welfare of the nation. The law gave the states broad discretion to determine how their programs were structured. One state sued, alleging that this federal law violated the Tenth Amendment to the U.S. Constitution.

Does this federal law violate the Tenth Amendment? (Q)

Answer 2

Yes. This federal law violates the Tenth Amendment. The federal government cannot commandeer the state legislatures by forcing them to enact particular state laws. Doing so would be an unconstitutional invasion of the state’s sovereignty. However, Congress can offer states an incentive to voluntarily adopt legislation. The incentive can be financial or regulatory in nature, as long as it:

is clearly stated,
is not unduly coercive (the state can freely choose to accept or reject the deal),
relates to the activity being subsidized, and
is not otherwise unconstitutional.

Here, the law does not give the states an incentive or offer the states a choice to enact legislation. Rather, the law commandeers the states by coercing them implement a federal law. Thus, under the Tenth Amendment, this federal law is an unconstitutional violation of the state’s sovereignty.

Question 3

Congress enacted a law that required states to impose mandatory annual testing for all automobile drivers who were 70 years and older. If a state failed to enact a law imposing the mandatory testing within a year, then that state’s share of federal highway funds would be reduced by 10 percent until the state enacted the legislation. One state did not adopt a law imposing the mandatory testing. After one year, the federal government reduced that state’s annual highway-fund allocation by 10 percent. The state sued, arguing that the federal law requiring mandatory driver testing violated the Tenth Amendment to the U.S. Constitution.

Is the state correct? (Q)

Answer 3

No. The state is incorrect. The federal government can condition a state’s receipt of federal funds on enacting state laws without violating the Tenth Amendment if the condition:

is clearly stated,
is not unduly coercive (the state can freely choose to accept or reject the deal),
relates to the activity being subsidized, and
is not otherwise unconstitutional.

Here, Congress conditioned the state’s receipt of highway funds on enacting a state mandatory-driver-testing law. Congress did not order the state to enact the law. The condition for funding was clear, related to the activity being subsidized (highway safety), and was not otherwise unconstitutional. While withholding 10 percent of federal funds could be coercive, a state could function without those funds. The condition is not unduly coercive, and the federal law did not violate the Tenth Amendment. Thus, the state is incorrect.

Question 4

Can Congress require local and state law enforcement officers to enforce federal laws? (Q)

Answer 4

No. Congress cannot commandeer state executive officers by requiring them to enforce federal statutes. Congress can offer financial incentives to encourage state and local law enforcement agencies to assist with the enforcement of federal laws. However, Congress cannot directly command state or local officers to enforce federal laws. (See Printz v. United States 1997)

Question 5

What was the rule from Printz v. United States (1997)? (Q)

Answer 5

Congress may not compel state officials to participate in the administration of federal programs.

Question 6

What was the rule from Reno v. Condon (2000)? (Q)

Answer 6

Congress may regulate states’ activities, using its Commerce Clause powers, provided that the regulation does not require the state to enact any laws or regulations and does not require state officials to assist in the enforcement of federal statutes regulating private individuals.

Question 7

What was the rule from South Dakota v. Dole (1987)? (Q)

Answer 7

The receipt of federal funds may be conditional if the exercise of the spending power is for the general welfare, the conditions are unambiguous, the conditions are related to a federal interest in a particular national project or program, and the conditions do not violate any other constitutional provisions such as the Tenth Amendment.

Question 8

What was the rule from New York v. United States (1992)? (Q)

Answer 8

Congress may not compel states to enact or administer a federal regulatory program.

Question 9

Congress passed the Communicable Disease Act. This act authorized the appropriation of billions of dollars of federal money to fund non-governmental organizations. To receive funding under the act, the organizations were required to have an express policy in opposition to prostitution and sex trafficking. An organization that was dedicated to fighting disease received some of its funding from the federal government. This organization sought a declaratory judgment that the act exceeded Congress’s authority under the United States Constitution. Specifically, the organization pointed out that forcing organizations to have express policies and viewpoints violated the organizations’ rights to free speech under the First Amendment to the U.S. Constitution. In response, the federal government argued that the act was still constitutional because it was a valid use of Congress’s power to tax and spend.

Is it likely that the act was a constitutional use of Congress’s power to tax and spend? (Q)

Answer 9

No, because the spending condition was unconstitutional violation of the organizations’ First Amendment right to free speech.

Congress exceeds its authority under the Spending Clause only if the spending condition: (1) is itself unconstitutional, (2) bears no relationship whatsoever to the funds being spent, or (3) is so unduly coercive that the recipient does not have a meaningful choice about whether or not to accept the funds. See Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 133 S.Ct. 2321 (2013). Here, the spending condition in the act requires organizations to adopt certain speech in violation of the organizations’ First Amendment right to free speech. Specifically, the act requires organizations to expressly state that they oppose prostitution and sex trafficking before the organizations can receive federal funds. Because the spending condition itself is unconstitutional, Congress exceeded its authority under the Spending Clause when it passed this act.

Question 10

Because of increased troubles across the globe and a reduction in voluntary enlistments, the United States military found itself stretched too thin to be able to effectively manage its worldwide operations. Consequently, Congress passed the Temporary Involuntary Enlistment Act. This act authorized the president of the United States to temporarily increase the military establishment of the United States by subjecting all citizens between the ages of 21 and 30 to duty in the armed forces through a nationwide draft. A 26-year-old man sued the federal government, arguing that the act was an unconstitutional use of Congress’s war powers.

Is it likely that the act was a valid use of congressional war powers? (Q)

Answer 10

Yes, because Congress has the power to raise and regulate the federal military.

Article I, Section 8 of the United States Constitution specifically enumerates congressional powers. By volume, the most numerous of Congress’s enumerated powers are those pertaining to war, the military, and foreign affairs (they occupy seven of Section 8’s 18 clauses). Examples of these are Congress’s power to declare war, its central role in raising and regulating the federal military, and its power to authorize the president of the United States to call forth the militia of the several states in certain emergency situations. This last provision has been interpreted as the principal constitutional authority for the involuntary conscription of military servicemembers through a draft. See The Selective Draft Law Cases, 245 U.S. 366 (1918). Consequently, here, under its specifically enumerated power to authorize the president of the United States to call forth the militia of the several states in certain emergency situations, Congress had the constitutional authority to pass the act authorizing the president of the United States to draft new service members.

Question 11

Congress passed the Nationality Act, which stated that any U.S. citizen could face monetary penalties for voting in a foreign political election. A man was born in the United States and was a U.S. citizen. However, the man lived most of his life in another country and voted in that country’s national election. Based on the man’s vote, the federal government found that the man had violated the act and fined the man. The man sued the federal government, arguing that Congress did not have the power to fine him for voting in a foreign election.

Is it likely that Congress had the power to fine the man for voting in a foreign election? (Q)

Answer 11

Yes, because Congress has some power to regulate foreign affairs.

Although the United States Constitution does not specifically give Congress the power to regulate foreign affairs, it is well-accepted that Congress does have some powers to regulate foreign affairs. See Perez v. Brownell, 356 U.S. 44, 62 (1958). For example, the United States Supreme Court has found that Congress could revoke a U.S. citizen’s citizenship for voting in a foreign election because the political activities of citizens abroad could cause embarrassment or diplomatic tension for the U.S. government. See id. Although that decision was later overturned on the basis that the United States could not strip a person of citizenship under the Fourteenth Amendment to the U.S. Constitution, the issue was the particular consequence used—not with Congress’s ability to regulate this matter.

Here, the statute did not remove the man’s citizenship for voting; instead, it only issued monetary fines. It is likely that Congress does have the authority to regulate foreign affairs by restricting a U.S. citizen’s ability to vote in a foreign election, provided that Congress is merely imposing a monetary penalty for this conduct. See Afroyim v. Rusk, 387 U.S. 253 (1967).

Question 12

Congress passed the College Savings Act, which required families with children to create and fund a college savings plan for each child up to the age of 18. If a family chose not to create a college savings plan, then that family would be required to pay additional money on their federal income-tax returns. A family had several children who did not want to attend college. The family sued the federal government, arguing that the act was unconstitutional in violation of the United States Constitution. In response, the federal government argued that it was a constitutional use of Congress’s power to tax.

Is it likely that the act is a constitutional use of Congress’s power to tax? (Q)

Answer 12

Yes, because the tax is for the general welfare and is applied uniformly throughout the country.

Article I, Section 8 of the U.S. Constitution specifically gives Congress the power to tax and spend for the general welfare of the United States. See U.S. Const. art. I, § 8, cl. 1. This is a broad power. In general, Congress can tax and spend for purposes beyond those specifically enumerated in the rest of Article I, Section 8. The primary requirement is that the tax or the expenditure is for the general welfare of the United States and applies uniformly throughout the country (i.e., the rates imposed by Congress do not vary from state to state). This means that, in general, Congress has the constitutional authority to enact almost any tax. Therefore, the principal check on Congress’s power to tax is not the U.S. Constitution, but the political unpopularity of any laws that impose new taxes. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). Here, because the tax was for the general welfare and applies the same in all states, the act was a valid exercise of Congress’s tax powers as set out in the U.S. Constitution.

Question 13

What two main powers does Congress have under the Taxing and Spending Clause? (Q)

Answer 13

The Taxing and Spending Clause, sometimes called the General Welfare Clause, grants Congress the power to:

lay and collect taxes and
pay debts and provide for the general welfare of the United States.
The power to tax is specifically enumerated in the clause. The power to spend money is implied in the authority to pay debts and provide for the general welfare.

Question 14

What is a direct tax? (Q)

Answer 14

A direct tax is a tax that applies to land or people “without regard to property, profession, or any other circumstance.” The Constitution requires that any direct taxes imposed by Congress be apportioned among the states based on their populations. In other words, a direct tax must be the same amount for each person in every state.

For example, a direct tax assessed at $10 per person would be a constitutional direct tax. But a direct tax assessed at $10 per acre of land would not be constitutional because the amount of the tax would vary from person to person, depending on how much land they owned. Because the apportionment requirement is very difficult to meet, the United States has not deliberately sought to impose direct taxes.

Question 15

What is an indirect tax? (Q)

Answer 15

An indirect tax is a tax that is not applied directly to people. Indirect taxes include duties, imposts, and excises, such as taxes on products imported into the United States. Consumers pay higher prices for goods or services that are indirectly taxed, but because the tax burden falls mainly on the importer and not the consumer, the tax is indirect.

Indirect taxes must be uniform, but there is no apportionment requirement, as there is for direct taxes. To be uniform, a tax on a given product or service must be imposed using the same rate structure nationwide.

Question 16

Must income taxes be apportioned? (Q)

Answer 16

No. Income taxes are expressly authorized by the Sixteenth Amendment, which states that they do not need to be apportioned.

Technically, income taxes are direct taxes because they are paid straight to the government by the taxpayer. The Constitution generally requires a direct tax to be apportioned, but income taxes are treated differently due to the special authorization in the Sixteenth Amendment.

Question 17

May Congress use its taxing power to indirectly penalize undesirable conduct or activity? (Q)

Answer 17

No. Congress may not use its taxing power to punish undesirable conduct. Congress may only use its taxing power in ways that are rationally related to raising revenue. A tax that functions primarily as a penalty for undesirable activity is unconstitutional.

Question 18

May Congress use its taxing power to regulate a matter reserved to the states or the people? (Q)

Answer 18

No. Congress may not use its taxing power to regulate a matter reserved to the states or the people. The Tenth Amendment provides that powers in the Constitution neither granted to the federal government nor denied to the states are reserved to the states or the people. If a federal statute imposing a tax regulates a matter reserved to the states or the people, that statute is not a constitutional exercise of the taxing power.

Question 19

Congress passed a law that placed a federal tax on selling illegal drugs. The law was based on a percentage of sales. To generate revenue and avoid making the tax punitive, Congress made the percentage the same regardless of the level of the drug’s illegality or the quantity of drugs being sold.

Does Congress have the authority to pass this law? (Q)

Answer 19

Yes. Congress has the authority to pass this law. Congress can generally impose taxes on any activity if the tax can theoretically result in the collection of revenue. Congress can enact federal taxes that have obvious regulatory objectives or that seek to create non-criminal penalties for vice activities like gambling or loan sharking. However, Congress cannot use its taxing power to:

indirectly establish a penalty that functions as a punishment instead of a method of raising revenue,
tax exports, or
exercise a power reserved to the states by the Tenth Amendment.
Here, the tax law is the same regardless of the drug’s illegality or quantity sold. There is no indication that the law is meant to be punitive. Instead, Congress enacted the tax to raise revenue. The law does not tax imports nor exercise a Tenth Amendment power. Thus, passing this law is within Congress’s authority.

Question 20

Congress wanted to require all individuals to have health-insurance coverage. However, some members of Congress were concerned that a law directly requiring individual health insurance would be outside the scope of Congress’s Commerce Clause powers. Congress amended the legislation to impose a tax on individuals who did not obtain health insurance. The amended legislation cited Congress’s taxing power as a means of indirectly requiring individuals to have health-insurance coverage. Individuals who did not obtain health insurance would receive a tax penalty when filing their personal-income taxes.

Does Congress have the power to indirectly require that individuals have health-insurance coverage? (Q)

Answer 20

Yes. Congress’s taxing power under the U.S. Constitution gives Congress the authority to indirectly require that individuals have health-insurance coverage. Under the taxing power, Congress can create tax incentives for people to engage in or refrain from engaging in behaviors that would otherwise fall under the state’s police powers and fall outside the scope of Congress’s Commerce Clause power to regulate the national economy. Congress must use the mechanism of adjusting an otherwise valid tax, like the personal-income tax.

Here, Congress created a tax incentive for individuals to obtain health insurance. Congress used its taxing power to indirectly require individuals to have health-insurance coverage by adjusting personal-income taxes for not obtaining coverage. Thus, Congress can use its taxing power to indirectly require that individuals have health insurance.

Question 21

What limits does the Constitution impose on how Congress may spend any revenue it collects? (Q)

Answer 21

Congress is free to spend as it sees fit, so long as it provides some public benefit. The spending power gives Congress broad discretion to spend federal revenue. Congress’s discretion is limited only by the requirement of providing for the general welfare, and the U.S. Supreme Court generally gives substantial deference to Congress on the issue of whether an instance of federal spending advances or promotes the general welfare.

Under the Necessary and Proper Clause, Congress can pass laws that are necessary and proper to exercise its spending power. This means that Congress can use any rational means to safeguard the integrity of federal-spending programs.

Question 22

May Congress use its spending power to encourage states to adopt desired regulatory schemes? (Q)

Answer 22

Yes. Congress may use its spending power to influence the states and encourage them to adopt desired regulatory schemes by placing conditions on the states’ receipt of federal funds. Though permissible, those conditions must be reasonably related to the purpose of the spending.

Question 23

Can Congress put conditions on a state’s receipt of federal funding? (Q)

Answer 23

Yes. Congress can put conditions on a state’s receipt of federal funding if Congress meets the following four constitutional requirements:

the exercise of Congress’s spending power must promote the general welfare;
the conditions attached to the federal funding must be clearly stated and non-coercive, so that a state’s participation in the program is both knowing and voluntary;
a nexus must exist between the federal interest in the program and the condition imposed by Congress; and
the condition imposed by Congress must be constitutional.
Although Congress is allowed to try to persuade the states to take certain actions using conditional spending, Congress cannot compel a state to enact legislation or execute federal law. Additionally, Congress cannot commandeer state officials.

Question 24

Congress enacted a criminal statute that made it illegal for local public officials involved in any program that received federal funds to receive bribes. A local official worked with a county Medicaid program that received federal funds. The official took a bribe in connection with certain medical-supply contracts. The government indicted the official under the new law. The official moved to dismiss the charges, arguing that the federal law was an unconstitutional exercise of Congress’s spending power because the law did not require any connection between the actual bribery conduct and the program’s receipt of federal funds.

Is the official correct?

Answer 24

No. The official is incorrect. The statute is a valid exercise of Congress’s spending power. Under the Necessary and Proper Clause, Congress can pass laws that are necessary and proper to exercise its spending power. This means that Congress can use any rational means to safeguard the integrity of federal-spending programs.

Here, the goal of deterring and punishing the act of bribing local public officials who oversee the spending of federal funds bears a rational relationship to the federal interest in making sure that federal funds are spent properly. This rational relationship is all that Congress needs for the statute to be a valid exercise of Congress’s spending power. The statute prohibiting local officials who manage federal funds from receiving bribes is constitutional. Thus, the local official is incorrect.