Legal Commentary

If Mark Sanford Really Doesn't Want The Fed Money . . .

By Big Tent Democrat

. . . then he should put his principles where his mouth is. He should sue to have the stimulus money NOT sent to South Carolina. Yesterday, the South Carolina Governor insisted again that he will refuse federal stimulus money. The problem is the federal stimulus legislation provides for the South Carolina legislature to bypass him and take the money on South Carolina's behalf. But, according to Jack Balkin, Sanford has a strong case that that provision in the federal stimulus bill is unconstitutional. If Sanford REALLY believes what he is saying, he should challenge the provision in the federal stimulus that renders him powerless to stop South Carolina from becoming Zimbabwe. Balkin writes:

Governor Sanford says he doesn't want the money except to pay down debt; the state legislature has passed a concurrent resolution (which the Governor cannot veto) saying that it wants the money with all the federal strings attached. The federal stimulus bill says that a concurrent resolution is all that is necessary; this provision was inserted in the bill in order to do an end run around GOP governors like Sanford who might refuse federal funds either because of political grandstanding or because of their lack of a basic understanding of economics.

I think this provision may not be constitutional. Unless you can demonstrate that under South Carolina law, the South Carolina Legislature, acting alone, speaks for the State, it would seem to me that the governor's consent is necessary.

Spending Clause jurisprudence requires that the state freely consent to conditional grants by the federal government. But not just any state official may give consent. The question of who is authorized to give consent to accept federal funding is a question of South Carolina state law, not federal law. Federal law can offer the states money to enforce federal mandates and even to pass legislation, but what it may not do is decide which state official is authorized to consent to federal grants that bind the state and its operations.

If Sanford was really the states' rights, "fiscal conservative" he is trying to play on TV, he would strike a blow for federalism and for his stated claim that South Carolina should refuse the federal money. If he doesn't, we can mark him down as an unprincipled, grandstanding blowhard.

Which way do you think he'll go? Heh.

Speaking for me only

Full post as published by TalkLeft on March 12, 2009 (boomark / email).