Second Journal Summary for Upcoming Publication of ASU Law Journal

Arizona State University College of Law is previewing its upcoming articles for publication.  The second article featured is written by third-year student, Cody Huffaker.

In February 2009, Congress passed and President Barack Obama signed the “American Recovery and Reinvestment Act of 2009”—more commonly known as the stimulus package.  The stimulus package includes provisions that grant sums of money to states in an effort to help them with local economic problems.  As is the case with most federal grants of money to states, the grants came with various strings attached.  A handful of state governors insisted that they would not accept any federal funds because of such strings.

One such state governor was Mark Sanford of South Carolina, whose vocal opposition to the stimulus package gained wide publicity.  In an effort to get around the governor and secure stimulus funds for South Carolina, Representative James Clyburn (D-AL) inserted a rather novel provision into the stimulus package.  It states: “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.”

This “bypass clause,” as I call it, raises novel and complex questions of constitutional law regarding the functions of federal and state governments in the acceptance of federal grants.  Can the federal government dictate which state entity can accept federal funds?  What if state law only allows the governor to accept federal funds?  What if state law allows either the governor or the legislature to accept?

Because the Tenth Amendment reserves to the States powers not granted to Congress, the United States Supreme Court has dealt with conflicts between state and federal law in at least four ways: (1) preemption, where federal law “trumps” state law under the Supremacy Clause of the United States Constitution; (2) conditional non-preemption, where the federal government forbears enacting preemptive laws on the condition that states regulate a certain way; (3) conditions-on-spending, where the federal government places strings on a state’s acceptance of federal funds; and (4) commandeering, where the federal government forces state legislatures or executives to enact or administer federal policy.

The first three doctrines usually allow the federal government to achieve its policy goals.  However, in New York v. United States and Printz v. United States, the Supreme Court ruled that the federal government may not “commandeer” a state legislature or executive by forcing the enactment or administration of federal policy.  Simply stated, Congress can preempt, threaten to preempt, or place conditions on funds, but it cannot simply force a state to enact or carry out its policies.

This article argues that the bypass clause likely constitutes a new type of commandeering.  Instead of simply forcing a state governor to implement federal policy against his or her will, the bypass clause removes the governor from the process of accepting federal funds—funds which are conditioned on the implementation of federal policy.  Once the funds are accepted, the governor is bound to implement policy that he or she was empowered to reject in the first place.  Clever and novel as the bypass clause may be, its constitutionality is nothing short of dubious.