"Coercion" and Butler

[Lupu, Ira (Chip)]

David Bernstein has on several occasions cited U.S. v. Butler for the
proposition that the federal government may not use its spending
power to coerce states into doing things which the federal
government may not command the states to do.  Please read Butler
again.  It is NOT about conditional grants to states.  Rather, it
concerns contracts between the federal government and farmers
directly, pursuant to which farmers agreed to reduce their
productive acreage in exchange for payments from the government.
States were not parties to the contracts.  The Court invalidated the
scheme for "coercing" behavior which (on then-controlling
understandings of  the Commerce Power) it could not command.
Ignore for a moment the inconsistency of this holding with Butler's
embrace of the Hamiltonian view of the spending power (spend for
the "General Welfare') rather than the Madisonian view (spend only
for objects enumerated in Art. I, sec. 8).  The propositional
lynchpins of Butler are 1) offers of money benefits to private parties
in exchange for foregone production is "coercive", and 2) the
foregone behavior is behavior which Congress may not command.
(An analogy from  today's law would be federal contracts directly
with schoolchildren not to bring their guns to school).  Does anyone
think that proposition 1) re: coercion would be reaffirmed by a single
Justice today?  Even if one might be tempted toward proposition 1 in
a time of depression when poor and struggling farmers are the
objects of the benefits offered, might anyone be tempted toward it
when states are the objects of the benefits offered?  Steward
Machine Co., decided one year after Butler, effectively repudiates
the notion that states can be coerced by being offered choices (self-
tax and self-regulate or suffer federal tax and regulation).  If
anything, the unemployment scheme upheld in Steward Machine
was more "coercive" than the usual conditional grant situation.
Dole, which picked up all of one vote in dissent, was an "extreme"
case not because of the coercive effects of the arrangements but
rather because the effects of the condition (enact a drinking age of
21 or older) far exceeded the scope of the benefit (highway funds)
to which it was attached.

So let's not throw around the cite to Butler as if it directly supported
the claim for cutting back on conditional grants to states; at the least,
let's acknowledge that the case doesn't even involve such grants.


Ira C. ("Chip") Lupu
The George Washington University School of Law
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu