South Dalota v. Dole

Tue Feb 24 09:04:08 PST 2009

We do have a system of supremacy of federal law within the domain that
they are allowed to spend of money, and the spending is spending of the
Federal Government's own money.  The historical Constitution is a
viciously anti-state document meant to eviscerate the states for their
failures to support the noble cause, and I don't see any implied states
rights, or any meaningful expressed states rights in the original
history meaning or intent of this Constitution.  I don't think we need
to bend over backwards to give room for a bit of silly season political
theater that is not very much help to the real problems we  face.  Let
us get about our real work, and ignore the silliness.  

Calvin H. Johnson 
Andrews & Kurth Centennial Professor of Law 
The University of  Texas  School of Law 
727 E. Dean Keeton (26th) St. 
Austin, TX 78705 
(512) 232-1306 (voice) 
FAX: (512) 232-2399 
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Michael Greve
Sent: Tuesday, February 24, 2009 10:48 AM
To: Mark Tushnet; Zietlow, Rebecca E.; RJLipkin at aol.com;
CONLAWPROF at lists.ucla.edu
Subject: RE: South Dalota v. Dole

Does anyone think this might be problematic? Suppose a governor vetoes a
concurrent resolution and the legislature can't override: what happens?

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Tushnet
Sent: Tue 2/24/2009 11:34 AM
To: Zietlow, Rebecca E.; RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu
Subject: RE: South Dalota v. Dole

FYI, this is the apparently relevant provision of the statute:

SEC. 1607. (a) CERTIFICATION BY GOVERNOR - Not later than 45 days after
the date of enactment of this Act, for funds provided to any State or
agency thereof, the Governor of the State shall certify that: 1) the
State request and use funds provided by this Act , and; 2) funds be used
to create jobs and promote economic growth.

(b) ACCEPTANCE BY STATE LEGISLATURE - 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.

Senator Schumer has apparently written to the head of OMB that this
provision allows only an "all or nothing" certification by the governor:
"To allow such picking and choosing would, in effect, empower the
governors with a line-item veto authority that President Obama himself
did not possess at the time he signed the legislation. It would also
undermine the overall success of the bill, as the components most
singled out for criticism by these governors are among the most
productive measures in terms of stimulating the economy."  Without
having done any research at all, I provisionally think that the
reference to "any agency" supports the lawfulness of a "mix and match"
certification (because it suggests the possibility of disaggregating the
"State" as a funds recipient).  John Boehner has apparently raised the
question of whether Congress can bypass the governor with respect to
acceptance of funds; my instinct on that is that the Lead-Deadwood case
suggests otherwise.

Mark Tushnet

William Nelson Cromwell Professor of Law

223 Areeda Hall

Harvard Law School

Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Zietlow, Rebecca
E.
Sent: Tuesday, February 24, 2009 11:13 AM
To: RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu
Subject: RE: South Dalota v. Dole

Hi Bobby,

When determining whether spending power conditions are too coercive,
courts usually do consider how much money is at stake if the state
refuses to abide by the conditions.  Although the lower courts have been
extremely reluctant to find any measure to be unduly coercive, it is
conceivable that a court might find that tying strings to the entire
amount of funds under the stimulus package would be unduly coercive in
violation of Dole.  I think it very unlikely that a court would find
that requiring to states to take the sum or leave it would be unduly
coercive - that argument does not fit the framework that courts have
applied in determining whether conditional spending is unduly coercive.

Rebecca E. Zietlow

Charles W. Fornoff Professor of Law and Values

University of Toledo College of Law

(419) 530-2872

http://www.nyupress.org/books/Enforcing_Equality-products_id-4830.html

http://ssrn.com/author=291341

http://works.bepress.com/rebecca_zietlow/

http://www.essentiallycontestedamerica.org

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Tuesday, February 24, 2009 8:34 AM
To: CONLAWPROF at lists.ucla.edu
Subject: South Dalota v. Dole

        Does South Dakota v. Dole permit the federal government to
require states to accept all of their assigned stimulus package if they
accept any at all.  If arguably so, what could the states argue against
such policy. Surely, not "coercion." Right? Any illumination would be
helpful.

Bobby

Robert Justin Lipkin
Distinguished Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
<http://ratiojuris.blogspot.com/> 
Essentially Contested America, Editor-In-Chief
http://www.essentiallycontestedamerica.org/

________________________________

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