Legal Commentary

Legal controversy over ARRA, the stimulus legislation, continues.  This week, a student in South Carolina filed an original petition in the South Carolina Supreme Court, seeking a declaration that the legislature could act to apply for more than $700 million in funds for S.C. education that the Governor has refused to request.  Last time I posted, I argued that under ordinary principles of statutory interpretation, the statute can plausibly be read to permit legislatures to "apply" for education funds, and almost certainly to apply for federal unemployment subsidies.  But, as I noted, the Congressional Research Service thinks that the statute should not be read that way, in order to avoid the 10th-Amendment question that, according to CRS, would be posed otherwise.  (The South Carolina AG also suggested this argument in a footnote to their memo on the question).

CRS (and, to the extent he takes this position, the SCAG) is off-base on this one, I think.

Although the 10th Amendment bars Congress from "conscripting" state non-judicial officers, a conditional offer of funds is not conscription.  The Supreme Court has said as much repeatedly, most notably in South Dakota v. Dole and New York v. United States.  (As an aside, I've argued, drawing on the work of Rick Hills and others, that the best explanation for that combination of rules is that it forces Congress to internalize the costs of enacting and enforcing legislation.)  So, ARRA is a conditional offer.  Where's the conscription?

CRS's argument, as I understand it, is that allowing the legislature to "apply" in place of the governor would be, in effect, allowing Congress to enlist the state's legislature to conscript its governor.  That's, um, a strange argument.  For one, if the legislature applies itself, it isn't forcing the governor to do anything; in fact, it's acting without the governor at all.  (Although para. 42 of the S.C. complaint also asks the Court to hold in the alternative that the legislature can force the Governor to apply.)  For another, there's nothing at all unusual about a decision by some state officials that binds other state officials.  No one would argue that a joint decision by governor and legislature to accept federal funds is a prohibited "conscription" because it also binds inferior state officers, such as the Secretary of Education. 

I think the conceptual problem that trips up CRS is the potential puzzle over what the federal-law consequences should be if state law does not ordinarily authorize the actor specified by federal law to bind other state officials.  So, in Jack Balkin's example, what if a federal statute says that the capital-house janitor can accept federal funds?  Are the conditions attached to those funds binding on the state? Or, more realistically, what if the state treasurer, a person with no real policy authority, cashes a $700 million federal check?  Is the state now bound, at least by estoppel, to follow the accompanying federal terms? 

These are interesting questions (and I've addressed them in depth elsewhere), but at this point they have nothing to do with the stimulus.  Even unelected state officials, such as state Secretaries of Education, routinely accept federal money in ways that bind states, and no one has ever suggested that these decisions would so undermine federalism norms that they should be problematic under the 10th amendment.  Hard to see how, if these are fine, a decision by an entire state legislature would be a problem.  Plus, the question for now is -- can the feds cut the check?  Also hard to see how disbursing money is conscripting anyone to do anything.   

--Brian Galle