Poison Pill Provisions In Porkfest Unconstitutional

It shouldn't surprise anyone that few people, let alone those members of Congress or the President of the US, actually read the entire porkfest stimulus spending bill. Fewer still took an interest in the poison pill provisions that related to unfunded mandates imposed on states.

Even fewer had a clue what Congress sought to do as an end run around state law.

What is truly sad is that the constitutional law experts are finally getting around to writing about this. Ronald Rotunda, who is one of the foremost constitutional law experts in the nation (and edits one of the key hornbooks on the subject), points out the poison pill provision.

Rotunda writes:

The aphorism, he who pays the piper calls the tune, is one that Congress understands quite well. If the state accepts funds, it also accepts a host of restrictions. For example, the plan increases, temporarily, the money it sends to states to fund various welfare programs. To receive that money, states have to add thousands of new people to the welfare rolls. In two years, the federal largesse stops, but the new welfare recipients are still there.

Consequently, several governors have said that they might simply refuse the money. Most are Republican, but recently the Democratic governor of Tennessee has joined the chorus. The stimulus bill, for example, gives $7 billion to the states to add to their unemployment trust funds, but to receive this "gift," a state has to change its formula so that it makes more people eligible for benefits, which leaves a long-term obligation on the system.

Because some governors might not accept the money, Congress added a unique provision, in subsection 1607(b): "If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State."

If state law does not give the state legislature the right to bypass the governor, how can Congress just change that law? Where does Congress get the power to change a state constitution?

It might appear quaint to note that the U.S. Constitution does not create a central government of unlimited powers. Congress only has those powers that the Constitution gives it either expressly or by implication. That's a lot of power, to be sure, but it's not unlimited.

Where does Congress get the power to bypass state law indeed. The federal government derives its legitimacy from the several states - not the other way around. This is an unbridled power grab by the federal government to coerce the states and to circumvent state governors who might refuse to impose massive unfunded mandates on their states at a time when state revenues are uncertain at best, and many are seeing a reduction in revenues.

This law throws federalism on its head and yet Congress and President Obama (who fancied himself a constitutional law expert) saw fit to include this provision in the bill. To what end did they see fit to do this? Did someone in Harry Reid or Nancy Pelosi's office contemplate a situation where a GOP governor might refuse to take federal aid but thought that the state legislature of that state might overrule the governor? If that's the case, then someone ought to be asking Reid's or Pelosi's office what they were thinking overruling decades of jurisprudence on constitutional law and the principles of federalism.

UPDATE:
Powerline also writes on the subject, and asked Prof. Rotunda whether the bill contained a severability clause. Apparently, it does not. For those who are unfamiliar with a severability clause, it essentially states that if any single provision of the bill is found to be unconstitutional, only that individual provision is rendered moot; the rest of the bill's provisions are still in force.