Following up on a previous posting featuring excellent comments by blogger Dave Nelle, he has today posted another excellent piece discussing whether or not the States could do anything to stop the stimulus bill.
Basically, a handful of Governors around America have expressed dissent over the bill, including Mark Sanford (South Carolina), Rick Perry (Texas), Sarah Palin (Alaska), Haley Barbour (Mississippi), and Bobby Jindall (Louisiana). However, in the case of South Carolina, Gov. Sanford has not only his own Legislature to be worried about, but also House Majority Whip Jim Clyburn (D-SC), who may be putting a potentially unconstitutional provision in the bill…
Not wanting to miss their ride on the gravy train, South Carolina legislators took the decision out of his hands by getting their man in DC, house majority whip Jim Clyburn to add a provision to the stimulus bill which will allow state legislatures to authorize spending of federal funds if they don’t get gubernatorial approval within 45 days of passage. Clyburn has no love for Sanford and his addition to the bill was clearly intended as a political rebuke to Sanford and the states-rights principles he stands for.
This provision in the stimulus bill basically means that even if governors oppose the stimulus package and want to block it, they will have no voice in the process. So now all of the governors who might have opposed the massive imposition of federal spending and obligations on their states are powerless. The implications for the future are ominous, because if this bill stands as a precedent it transfers a huge amount of power away from state governments and to the congress, taking away any ability of states to determine their own fiscal policies when federal funds are involved.
The inclusion of this rule is troubling because there is very little question that it is blatantly unconstitutional and a clear violation of the 10th Amendment. It’s a big stretch interpret the constitution to allow for the Congress to force money on the states and then force them to accept federal government dictates on how to spend that money. This creates a situation reminiscent of the case in Schechter Poultry vs. the United States where the Supreme Court struck down the National Industrial Recovery Act of 1933 for giving powers to the federal government which were not granted to it constitutionally. It may also run afoul of the ruling in New York vs. the United States [my link on the Supreme Court's opinion on this case] which ruled that it was unconstitutional for the federal government to force state governments to act as its agents. The passage of the stimulus bill with this inclusion may lead to legal challenges from some states and legal rights groups. If it does not, the danger of the precedent it will set in weakening state autonomy is frightening.
So the bad news is that despite the best efforts of a few heroes like Governor Mark Sanford of South Carolina, craven state legislators and power-hungry Democrats in Congress have assured that the massive stimulus spending will go into effect over the objection of concerned governors. In doing this Congress may well have precipitated a constitutional crisis and it is clear that the last remaining hope for those who want fiscally responsible government and oppose this massive deficit spending bill lies with legal challenges in the courts, and ultimately on the slender hope that the Supreme Court will block this massive expansion of federal power and affirm the validity of the 10th Amendment.
I disagree with Mr. Nelle’s conclusion regarding precedents being set with the passage of this bill by Congress. We all know that Congress can pass all the laws they want to and all that the Supreme Court — or lower Court, for that matter — would have to do is strike out the provision from the bill and/or the entire bill altogether (though I wouldn’t count on a Court going that far).
Instead, what would be precedent-setting is a Court — especially the Supremes — having this issue brought before them and their ruling in favor of the defense; this would be highly unlikely based on stare decisis.
Then again, a case would have to be brought before the Judiciary, as the Court system will not “legislate from the bench” and take up this action on their own.
We’ll see if there will be any takers.
A current listing of State-based initiatives can be found here.