The Bounds of Congress’ Spending Power

44 Pages Posted: 30 Apr 2018

See all articles by Mark Seidenfeld

Mark Seidenfeld

Florida State University College of Law

Date Written: April 24, 2018

Abstract

The spending clause of the Constitution, unlike all the other enumerated powers granted to Congress, allows its exercise to provide for the general welfare. This article addresses the extent to which that aspect of the spending clause permits the federal government to circumvent limits inherent in the other enumerated powers. It considers why the spending clause alone would permit pursuit of the general welfare and posits that spending is different from the other enumerated powers in that it necessarily involves a voluntary transaction: If the federal government spends money to buy a good or service, there must be a willing seller. The article uses this insight to reanalyze some old chestnut spending power cases, from which it derives the principle that the spending power is limited to spending subject to budget constraints. This in turn means that the government may not exercise the spending power for purchases induced by a threat that is unrelated to the interest of the federal government in ensuring that it obtains the quality of the goods or services it purchases and does not spend more than necessary to obtain them. The focus on spending as involving the exercise of non-coercive powers of government leads to the further conclusion that the federal government should not have the power to purchase coercive exercises of governmental power from the states. The article applies these two limitations to the Trump administration’s threats to withhold grant funding from sanctuary cities, and concludes that certain requirements the administration seeks to impose on local and state governments as a condition on receipt of grant money is beyond the federal government’s spending power.

Keywords: Spending Power, Congress, Federalism, Sovereignty, Legislation

Suggested Citation

Seidenfeld, Mark, The Bounds of Congress’ Spending Power (April 24, 2018). Arizona Law Review, Forthcoming; FSU College of Law, Public Law Research Paper No. 874. Available at SSRN: https://ssrn.com/abstract=3168152

Mark Seidenfeld (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-3059 (Phone)
850-644-5487 (Fax)

HOME PAGE: http://www.law.fsu.edu/faculty/mseidenfeld.html

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
37
Abstract Views
219
PlumX Metrics