Yesterday, Chuck Schumer won plaudits for insisting that the stimulus wasn't "multiple choice," in response to Bobby Jindal's stated decision to reject a (minimum) amount of the money. To answer my friend Steve Benen's question, the stimulus is "multiple choice," and according to a post Jack Balkin wrote last week, that's what makes the bill Constitutional.
The Supreme Court's jurisprudence on conditional funding to the states under the spending or General Welfare clause is premised on the idea that conditions on federal grants to the states do not violate the reserved powers of the states under the Tenth Amendment because states always have the right to turn down the funding. For some, this doctrine is little more than a legal fiction: because states in the modern era are so dependent on federal largess, the offer of funding with strings attached is one that the states cannot refuse. Hence no matter what the courts say, the states are really being coerced into accepting federal regulation, which, critics of modern spending clause doctrine would contend, violates the Tenth Amendment.
Balkin adds that "Ironically, then, if one or more states seriously suggests that they may refuse some or all of the stimulus money because of the federal strings attached, this tends to demonstrate that the stimulus bill is a constitutional exercise of the spending power." So Bobby was right, and Chuck was wrong.
-- A. Serwer
