Garrett and the Spending Clause

[Rebecca E. Zietlow]

Actually, the U.S. v. Butler Court did not hold that Congress' spending
power is limited to carrying out its enumerated powers.   Rather, the
Butler Court adopted the Hamiltonian view of the power and ruled that
"the power of Congress to authorize expenditure of public moneys for
public purposes is not limited by the direct grants of legislative power
found in the Constitution."    This means that Congress can use the
spending power to regulate matters that extend beyond its enumerated
powers, such as the commerce power.  The Court has repeatedly affirmed
this rule and consistently upheld Congress' use of the spending power
even when the spending legislation clearly does not fit within Congress'
enumerated powers, and even when such legislation arguably goes beyond
other limits within the constitution. For example, in U.S. v. Dole, the
Court upheld a statute requiring states to raise the drinking age to 21
in order to receive highway funds.  The statute  arguably violated the
21st amendment, which relegates the regulation of liquor to the states.
The Court found that it was unnecessary to determine whether the 21st
amendment would prevent Congress from regulating the drinking age
directly (for example, pursuant to the commerce power) because Congress
had regulated indirectly, pursuant to the speding power, instead.

Rebecca E. Zietlow
University of Toledo College of Law
rzietlo at uoft02.utoledo <mailto:rzietlo at uoft02.utoledo> .edu
(419) 530-2872

[Administrator]  --Original Message-----
From: David Bernstein [mailto:Deliotb at AOL.COM]
Sent: Monday, August 20, 2001 1:43 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Garrett and the Spending Clause



My understanding is that United States v. Butler, holding that Congress
cannot regulate indirectly under the spending clause if it cannot
regulate
directly under the commerce clause, has never been overruled, though it
was
weakened by the "bribing power" in US v. Dole.  Butler doesn't get much
attention because no one seems to think it would be affirmed today, but
then
again I bet very few of us though that the Court would reaffirm the
Civil
Rights Cases.

David E. Bernstein
Associate Professor
George Mason University
School of Law
(703) 993-8089
Home Page: http://mason.gmu.edu/~dbernste
Only One Place of Redress Home Page:
http://mason.gmu.edu/~dbernste/Redress.html


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