Article I, Section 8, Clause 1:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; . . .

Beyond the clear-notice requirement and the anti-coercion rule, the Court evaluates Spending Clause legislation using three additional factors. First, spending must be in pursuit of the general welfare.1 This determination is largely for Congress to make.2

, 116 Stat. 81; cf. Lyng v. Int’l Union, 485 U.S. 360, 373 (1988) (explaining that “the discretion about how best to spend money to improve the general welfare is lodged in Congress rather than the courts” ); Mathews v. De Castro, 429 U.S. 181, 185 (1976) (similar). The Court substantially defers to Congress’s decision that a particular expenditure advances the general welfare.3 The Court has not invalidated Spending Clause legislation on the ground that it did not satisfy the general welfare requirement.4 It has even questioned whether the general-welfare requirement is judicially enforceable.5

Second, a funding condition must reasonably relate to the federal interest in a program.6 The Court has not held that a funding condition was unrelated to a federal interest. It has instead sustained a condition requiring states to set a minimum drinking age of twenty-one, because that condition promoted the federal interest in safe interstate travel.7 The Court has also concluded that Congress could require a state to not employ in its federally supported programs a person who plays an active role in the affairs of a political party.8 This condition advanced the federal interest in sound management of federal funds.9

Third, a funding condition may not induce states to act in a way that is itself unconstitutional.10 This factor asks whether provisions of the Constitution, other than the Spending Clause, prohibit the conduct that the funding condition would prompt.11 The constraining effect of other constitutional provisions is explored in other essays.12 However, under the Court’s modern case law, it appears that one provision of the Constitution in particular, the Tenth Amendment, is not properly understood as a capable of standing as an independent constitutional bar to a conditional offer of federal funds that otherwise satisfies the Court’s five-factor analysis.13

Footnotes

1

South Dakota v. Dole, 483 U.S. 203, 207 (1987).

2

Buckley v. Valeo, 424 U.S. 1, 90 (1976) ( “It is for Congress to decide which expenditures will promote the general welfare.” ), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155

, 116 Stat. 81; cf. Lyng v. Int’l Union, 485 U.S. 360, 373 (1988) (explaining that “the discretion about how best to spend money to improve the general welfare is lodged in Congress rather than the courts” ); Mathews v. De Castro, 429 U.S. 181, 185 (1976) (similar).

3

Dole, 483 U.S. at 208; see also Buckley, 424 U.S. at 91 (stating that whether spending is wasteful, excessive, or unwise is irrelevant to judicial review of the general-welfare requirement).

4

Nat’l Fed’n of Indep. Bus., 567 U.S. at 674 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting).

5

Dole, 483 U.S. at 208 n.2 ( “The level of deference to the congressional decision is such that the Court has more recently questioned whether ‘general welfare’ is a judicially enforceable restriction at all.” (citing Buckley, 424 U.S. at 90–91)).

6

Id. at 207–08; cf. Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295 (1958).

7

Dole, 483 U.S. at 207–08.

8

Oklahoma v. U.S. Civ. Serv. Comm’n, 330 U.S. 127, 143 (1947).

9

See id.

10

Dole, 483 U.S. at 210–11; King v. Smith, 392 U.S. 309, 333 n. 34 (1968).

11

See United States v. Am. Libr. Ass’n, Inc., 539 U.S. 194, 214 (2003) (plurality op.) ( “Because public libraries’ use of Internet filtering software does not violate their patrons’ First Amendment rights,” a federal statute requiring such filtering as a condition of federal funds “does not induce libraries to violate the Constitution, and is a valid exercise of Congress’s spending power.” ).

12

In addition, the Court has developed its unconstitutional conditions doctrine, in part, by examining Spending Clause legislation. See Amdt1.7.13.1 Overview of Unconstitutional Conditions Doctrine (summarizing the doctrine as resting on the principle “that the government normally may not require a person, as a condition of receiving a public benefit, to relinquish a constitutional right” ).

13

Cf. Dole, 483 U.S. at 210 (characterizing Oklahoma v. U.S. Civ. Serv. Comm’n, 330 U.S. 127 (1947), as having held that “a perceived Tenth Amendment limitation on congressional regulation of state affairs did not concomitantly limit the range of conditions legitimately placed on federal grants” ).