SPENDING POWER: Art.

I, § 8
“Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay
the debts and provide for the common defense and general Welfare of the United States…”
Congress can spend any way it thinks serves the general Welfare, so no as no other provision
of C is violated.
Consistent with Condition must be Nexus: some Independent bar from
“general welfare” clear and relationship to the other constitutional
unambiguous purpose of spending provisions
program
US v. BULTER (1936): PENNHURST STATE SABRI v. US (2004) SD v DOLE (1987)
endorsed Hamilton’s SCHOOL AND *unanimously upheld *upheld denial of 5% of
perspective that HOSPITAL v. federal law that federal highway funds
clause confers a HALDERMAN (1981) prohited the bribery to any state w/o 21
“separate and distinct *so that states will of state, local, and year drinking age.
power from those later know the tribal officials in *”at some point the
enumerated.” consequences of entities that receive financial inducement
HELVERING v. DAVIS their choosing to at least $10,000 in might become so
(1937): “the take federal funds. federal funds. coercive as to pass the
discretion…clearly *”money is fungible, point where pressure
belongs to congress, bribed officials are becomes compulsion”
unless the choice is untrustworthy but “encouragement to
clearly wrong, a stewards of federal state action” is OK.
display of arbitrary funds…” *could “traditional
power, not an exercise areas of state concern
of judgment.” Thomas, J. concurring: matter” after NY or
*What about the “plainly adapted” Lopez?
bridge to nowhere?
Political process
checks?

14A, § 5: Power to enforce

Can 14A regulate private conduct? Was MORRISON correctly decided?
YES NO
*The Civil Rights Cases remain good law for *1883’s understanding of discrimination should
establishing that 14A only applies to not be controlling; different world, more
government action and not private conduct. insidious forms of discrimination.
*14A was meant to have broad scope.
What is the scope of 14A, Section 5 power?
BROAD NARROW
KATZENBACH v. MORGAN (1966) CITY OF BOERNE v. FLORES (1997):
upheld the Voting Rights act, a response to a declared RFRA unconstitutional as exceeding
SCOTUS decision. the scope of Congress’s § 5 powers. Adopted
(1) congress could have concluded that granting to overturn SMITH, which lessened free
Puerto Ricans the right to vote could empower exercise clause protection and allowed a
them and help them to eliminate discrimination prohibition on peyote to be applied to Native
against them. Thus, the law was constitutional Americans.
because it was a remedy for discrimination.
*”legislation which alters the meaning of the
(2) could find that the literacy test denied equal
protection, even though that was contrary to the Free Exercise Clause cannot be said to be
Court’s holding in Lassiter. This approach accords enforcing the Clause…the power to enforce is
congress the authority to define the meaning of not the power to determine what constitutes a
14A. constitution violation.”
*§ 5 affords congress the same broad authority as *”there must be a congruence and a
the necessary and proper clause. This, however, proportionality between the injury to be
does not allow congress to dilute equal protection. prevented or remedied and the means
-C rights/court defined rights are the floor of equal adopted to that end.”
protection, not the ceiling. 9A, enumeration of *MARBURY argument that allowing congress
rights shall not be construed to deny right
reserved to people. Thus, court finding that a right
is not C protected is not incompatible with
statutory recognition.
-enforcing can be “strengthening” or “urging”
-14A was enacted with suspicion of state power,
not deference to state power.
“to define the scope of rights” would
undermine the rule of law.
-avoids risk that congress could undermine
14A rights; protects the role of the court.
-consistent with a federal government of
limited authority with most governance left to
the states.