Legal Commentary

Greetings again to Prawfs readers.  I'm here as unofficial guest-blogger to say a few words about the recent efforts by (republican) governors to turn away some of the money marked for states in the recent stimulus legislation.  The act has the euphonious acronym "ARRA," for reasons you don't really want to know.  (Possibly they wanted to conjure subliminal images of Meryl Streep singing and dancing.) 

So, ARRA provides a number of grant programs for states.  The big-ticket items are education funding and extra money for unemployment insurance.  Both streams of money come with some strings attached.  In the case of education, states have to promise to make a number of reforms,with some more detail on those reforms yet to be spelled out by Arne Duncan and the kids at the DOE.  The unemployment insurance pool requires states to agree to expand eligibility for unemployment benefits, including allowing workers whose last job was only part-time to claim benefits (this is already the law in some states, but not all). 

Like most conditional grant programs, the money and strings are optional; the legislation says that money can only start flowing if the governor of the state "certifies" that he will accept the money.  And then the two big grant programs both require some kind of application from the state.  As you might have heard, various republican presidential hopefuls/current governors have made noises about either not filing the certification or not submitting an application.  At this point, it looks as though everyone will certify, but some will not apply.  So after all that effort to pass the thing, some of the money won't go anywhere.

But...ARRA allows state legislatures to certify when the governor won't.  Maybe this provision applies to the application process, too.  But the Congressional Research Service, among others, thinks that provision is maybe unconstitutional.  Will states get their money, or will Sarah, Haley, Rick, and Bobby get the last word?  Stay tuned for my next post.