The Spending Power
As part of my draft paper on “Federal Remedies for Dysfunctional States,” I thought I’d pose the following hypothetical. Suppose that a state goes to Congress for a federal bailout. Congress responds that the money will be provided on condition that the Governor resign. (And let’s say there are some findings made that the Governor is corrupt/inept/a spendthift, etc.) Would this be constitutional?
One answer is yes because the state is free to refuse the money. Under that theory, there could never be an unconstitutional exercise of the Spending Power. Another answer, following South Dakota v. Dole, is that there must be a sufficient link between the spending and the condition to uphold Congress’s decision. (So it would depend on the nature of the factual findings). Finally, one could say that nullifying a state election (even through a carrot) violates the Tenth Amendment in the absence of a declaration that the state is no longer “republican” under the Guarantee Clause.
What do you think?