Monday, March 16, 2009

Stimulus has constitutional problems

Last month, Congress enacted the American Recovery and Reinvestment Act, popularly called "the stimulus plan." It gives billions of dollars to the states, but the gift has strings attached. One of its unique provisions changes state constitutions! That provision is unconstitutional, and its defect raises problems about the whole enterprise.

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? 

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