Using Spending Power to Encourage States to Enact Certain Laws and The Commerce Clause

The Tenth Amendment and the Spending Power

Task:

We have also 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. . . . We think that . . . the [spending] power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’s broad spending power. But no such claim can be or is made here. Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State’s action in so doing would not violate the constitutional rights of anyone.

Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which “pressure turns into compulsion.” Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937). Here, however, Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is unconstitutional simply by reason of its success in achieving the congressional objective.

When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact. . . . Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory but in fact. Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in § 158 is a valid use of the spending power.

Controlling the Stream of Interstate Commerce the Power to Regulate The Commerce Clause, more than any other enumerated power, affords
Congress potent regulatory authority. Article I, section 8, clause 3, states that “[t]he Congress shall have the power . . . to regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.” Since Franklin Delano Roosevelt’s New Deal era, the Supreme Court has interpreted the Commerce Clause broadly, giving Congress the ability to regulate almost any area of activity as long as that activity has national effects. However, the Supreme Court has begun to rethink the breadth of commerce power, shifting regulatory authority back to the states for activities that are primarily intrastate. In United States v. Lopez (excerpted next), the Court was faced with a popular statute in which Congress had restricted gun possession in school zones. Chief Justice William Rehnquist’s opinion does not question the importance of firearm control as a legitimate public health function. Rather, he argues that controlling the mere possession of guns in schools is outside the sphere of the federal commerce power.