Dole

[Gary Allison]

Gary Allison writes:

Where is the coercion in Dole.  If you find it there, then it is every
spending case whether it involves a state or a private entity who is asked
to do something in return for receiving federal funds.  It is true that
Dole involves the complication of additional conditions being added to the
States' ability to receive federal highway funds.  Nevertheless, such funds
are appropriated year by year, and surely Congress has the right to
determine the conditions under which anyone, state, local government, or
private entity, may receive them.  If not, the Spending Clause Power of
Congress will be a dead letter.

To which I respond:
There is a difference between two situations:

(1) All states are entitled to X dollars if they spend them on Y.

(2) All states are entitled to X dollars if they spend them on Y, unless
they refuse to pass legislation Z, which is not germane to Y.

This is the standard difference between refusals to fund, on the one hand,
and unconstitutional conditions on the other. The government can refuse to
pay for an abortion, but it could not deny an otherwise eligible Medicaid
recipient her benefits on the ground that she has had an abortion. By the
same reasoning, Congress can grant money to states to provide health care
benefits in compliance with federal standards, and can withhold money in
cases of violations of those standards, but Congress could not pass a law
denying such grants to any state that failed to pass  union shop legislation
(even though I have no doubt that Congress has authority to enact national
union shop laws under the Commerce power, with preemptive effect).

I think that is why Justice Brennan joined Justice O'Connor's dissent in
Dole: because the rationale of Dole is inconsistent with Speiser v. Randall,
FCC v. League of Women Voters, and the other unconstitutional conditions
cases.  It is simply not true (and not in accord with settled constitutional
doctrine) that selective funding is inherently noncoercive.

In my opinion, the reason Dole came out the way it did is that the Court
presumed that there is no constitutional difference between Congress passing
a national drinking age law and Congress requiring the states to pass a
uniform drinking age law. I quote from the opinion:

"The [Twenty-first] Amendment, under this reasoning, would not prevent
Congress from affirmatively enacting a national minimum drinking age more
restrictive than that provided by the various state laws; and it would
follow *a fortiori* that the indirect inducement involved hiere is
compatible with the Twenty-first Amendment."

I think the "a fortiori" argument here is inconsistent with New York v.
United States. From the fact that Congress may pass a law it does not follow
that it can require the states to do so. Whether withholding of otherwise
available funds counts as a form of coercion is often a difficult question
under the facts (compare FCC v. League of Women Voters, Taxation With
REpresentation v. REgan; Rust v. Sullivan; Legal Services v. Velasquez), but
it is not sufficient simply to say that spending restrictions are inherently
noncoercive.

To which I reply:

I do not believe all exercises of the Spending Clause are inherently
non-coercive.  If the program is very important, States have become heavily
reliant on it, and the size of the penalty for not satisfying some add on
condition becomes too great, then I believe there is unconsitutional
coercion involved.  The art of Spending Clause analysis is deciding whether
a State has become so reliant on a federal spending program that its
ability to exercise independent sovereign judgment would be comprised if it
lost some significant portion of the funding.  To that end, the Court has
quite correctly stated that the test of such state dependency cannot be
satisfied just by noting that no state refuses the federal offer.  I also
believe if the program is not very important in the sense that it involves
small dollar amounts or subjects that are not very important to improving
the quality of life within a State, the federal government could deny a
State access to it for almost any reason, whether it is or is not germane
to the purposes of the program, and State sovereignty will not be
threatened in an unconstitutional manner.

There is also the problem of how to classify new conditions or
specifications on a State's eligibility to receive funding under a federal
spending program.  One way to look at this problem is that all of the
conditions, original or new, simply specify the behavior that the federal
government is willing to pay for.  Viewed this way, a refusal of the state
to comply with the conditions should permit the federal government to
refuse to let the state participate in the program, which would be a total
withdrawal of funding.  So, for example, if the federal highway program
specified that road materials must satisfy certain quality standards, the
federal government should be able to take away all federal highway funds
from a state which refuses to abide by that qualifying requirement.  In
subsequent years, the federal government should be able to require the
States to use progressively higher quality road materials and deny them any
funding if they refuse.

Now, I do agree that adding the condition involved in Dole, that States
increase their minimum drinking age to 21, is somehow different than the
road materials conditions and should be treated differently.  I am just not
sure how to label such a condition.  But, I believe the different treatment
should be that federal government should not be permitted to withdraw a
large percentage of the State's share of an important Spending program
because of its refusal to satisfy such a condition.

I share Michael's belief that non-germane conditions to an important
federal spending program should be regarded as unconstitutional regardless
of how small is the penalty for a State to refuse to comply with them.
But, I also believe the germaneness test should not be very strict and
should be satisfied as long as any reasonable person would thing the new
condition was in any way logically related to the original spending
program.  In Dole, this rational basis germaneness approach was satisfied.
Federal highway funding promotes safe and efficient highway conditions.
The federally mandated drinking age had highway safety as one of its
primary concerns.  In contrast, I believe Michael's examples should be
considered non-germane even under the liberal germaneness test I support.


--
Gary D. Allison
Professor of Law
University of Tulsa College of Law
3120 E. 4th Place
Tulsa, Ok 74104
(918) 631-3052 (O); (918) 631-2194 (F)
gary-allison at utulsa.edu