Alison LaCroix, “The Lost History of the Spending Power”
Articles,  Blog

Alison LaCroix, “The Lost History of the Spending Power”


ALISON LACROIX:
It’s fun to be here to talk about a new
project, something I’m working on right now. Minutes ago, I was
in my office looking at 19th-century
documents, so it’s exciting to be able
to convey what I was looking at to this audience. So let’s start with
a hypothetical, because that’s what we do. So I have to start that way. So let’s suppose
Congress wants to build a new eco-friendly
national highway system. And some states already
have adequate roads that can be used, but others
have decrepit highways that have to be upgraded
for electric cars, because it’s an
eco-friendly highway system. And those states’ legislatures
are dominated by politicians who oppose federal funding. They don’t like broad
congressional power. They don’t like the
majority party in Congress. Some of them think the
electric car industry will hurt American car makers. So they have lots
of reasons to think that this is a bad program. So a handful of these states
express their intention to resist the federal program. You can probably see
where this is going. So the question is, can
Congress threaten the states, and what kinds of threats
does it have at its disposal. And indeed, can it
threaten the states with the removal of
funding, highway funding– not just new highway funding for
this new electric car program, but all highway funding,
everything the states have gotten. So six months ago, let’s say,
the answer would have been yes, probably. They probably can threaten
to take away all the highway funding, certainly a lot of it. And for that, we would point
to South Dakota v. Dole, a case that many
of you are probably familiar with– all of you will
be familiar with at some point. And there, the court
basically said, yeah, there’s a conditional
spending power that Congress has that means it can say
to the states, do this, and we’ll give you money. And if you don’t do it,
you don’t get the money. And the states can
sort of choose. That was, say, six months ago. In June, in the health care
case that many of you, I’m sure, are familiar with, the
court modified that answer. And there’s a question
about were they changing it, or were they refining it. But after that case, since then,
now, the court would say no. They would say
Congress can’t threaten all the existing funding. They can probably take
away the new funding or threaten to take
away the new funding. But they can’t take
away everything, not the preexisting funding. It might depend on the
percentage of total state revenue that the highway
funding accounts for. But the answer would be no, you
can’t just take this all away. All right, what
about 195 years ago? 1817, just to pick a date– what if you ask those people
whether Congress could do this. Well, you would get
a quizzical look, I’m pretty sure, not just
about the electric cars. You could tell them, well,
it’s like a barouche-landau, but it’s different. The quizzical look,
I think, would have resulted in the
following kinds of answers. Well, yes, Congress
probably can take away all of this highway funding
you’re talking about, these roads. Let’s call them turnpikes. And the people in
1817 probably wouldn’t see a big distinction between
the old and new funding. But then they would probably
ask why this mechanism, why this condition. And they probably
would have said, Congress could appropriate money
for the roads, these turnpikes. It can’t oversee the
actual construction. But the appropriation
is probably OK, although we have
trouble pointing to a particular
provision of the text. And then they would
ask which state. Did the state consent? Was it one of the original 13,
or was it a post-1787 state? What were the terms
of its admission? So they would have asked
different kinds of questions, obviously, from the kinds
the court asks today. So why do I mention all this? Well, because in this period
in the early 19th century, not only were Americans
facing a crisis of confidence, which I like to think of as a
kind of adolescent uncertainty. They were watching the
founders die all around. I mean, they were– some of them on
the same day, a lot of them on July 4th, and
not just the same July 4th. So Madison was one
of the longest-lived, but he died in 1836. James Monroe died
on July 4th, 1831. And, of course, famously, Adams
and Jefferson on July 4th, 1826. And so there was
this new generation of politicians and
lawyers and judges and other people,
observers, people discussing this these questions, who were
really trying to figure out how they could
complete the founding, because they felt like
that was their job. But on the other hand, they also
felt like they were inadequate. So they would hear these
stories from their parents about, in my day, we took
the cannon off Boston Commons so that the Lobsterbacks
couldn’t get them. What have you
done, Joseph Story? And little Joseph
Story, at that point, hadn’t done very much, although
he obviously compensated. And little Joseph Story
was upset about this. And so were a lot
of these founders. So little Daniel Webster,
Henry Clay, William Wirt, you name it. A lot of these founders
in the 1820s and 30s– or these politicians and lawyers
and observers, commentators, newspaper writers,
including women, including people who were not
part of the dominant political elite– really felt like they had
this task of working out what the founding was going to mean. And one of the central
issues for them was the scope of Congress’
power over what they called internal improvements. So these we could think of
as public works projects, like roads and canals,
turnpikes, later railroads. And there was a
lot of controversy about these internal
improvements. In fact, in several elections,
believe it or not, president said, I have this position
on internal improvements. It’s a controversial issue. People really listened. And from Madison
to Polk, at least, this was a big ground on
which the presidents clashed with Congress. And the Supreme Court
even entered the picture. So at some points,
every politician had to make a statement
about internal improvements. So this is Abraham Lincoln as
a candidate for the Illinois State Assembly from
Sangamon County in 1832, where he said that the
poorest and most thinly populated countries would
be greatly benefited by the opening of good
roads and in the clearing of navigable streams
within their limits is what no person will deny. So it has this very early
19th-century flavor of progress and westward expansion and
using these incredible rivers and streams that the
United States believed that it had and was certainly
expanding into in this period. So another thing that’s
interesting about this period, though, is it complicates
a lot of the stories that constitutional law
scholars tell about the history of certain doctrines. And indeed, the idea that
certain doctrines don’t have a history– let’s say they were invented
during the New Deal period, or that they have a history,
and it’s been unchanged since the founding. So the conditional spending
prong of these discussions, which I’ll talk
about, really adds insight on what history
says to constitutional law. So I have three parts
to today’s talk. So the first is a quick primer
on the spending power today. Second, congressional spending
in the 19th century and how internal improvements
fits in there, and then third,
what this shows us about the universe of
constitutional possibility, which I think changes
at different periods. And that’s a big
part of the claim of this project, even when
the text and the structure and the other components
seem identical. So first, the
spending power today– some of you, I know, are hearing
a lot about this these days. But it should always
be on our minds because the health care case
really has brought it back. So the health care case,
National Federation of Independent Business v.
Sebelius– you can tell it’s an important commerce
clause-ish case because people don’t
call it by its name, like the sick
chicken case, right? That’s what everybody calls
it, or the steamboats, or the wheat case. Well, this is the
health care case. So let me just take a minute to
go over the parts of the case that I think are relevant for
this 19th-century discussion. So the holding– nobody
needs a review on that because we’re Chicago students. But the first part is
the individual mandate. And this is the one
where the court said, Congress can do this
under the taxing power, but not under the Commerce or
the necessary and proper power. So that’s individuals
can be required to purchase insurance or
else pay a tax penalty. Second, and this is
more relevant for us, the Medicaid expansion– so to the extent that Congress
was threatening the states with the loss of existing
Medicaid funding, the court said the program
was unconstitutional. So new funding can
be threatened– that’s the essence of
conditional spending– but not existing funding. And this, again,
is Dole, that case I mentioned, with the highways
in South Dakota and the age for the purchase of alcohol. So the story the court tells
in these conditional spending cases is about states
and their compliance. And since the nineteen-teens,
twenties, these early cases, the idea had been, well, it has
to be the case that the states can take or leave the deal. There has to be a condition. It’s not just an order. They can’t be pressured. They can’t be coerced. And this idea of coercion is now
back in the case law in a way that it hadn’t been
really since the 1920s. So this is something
that a lot of people are watching for the next
cases because there’s a question of,
oh, at some point, we think that the
condition is too coercive. So if you think
about it, the way the court frames it in the
health care case is they say, the states here
have no real option. They can’t lose all of
their Medicaid funding. That’s a huge part
of their budgets. So the court said
this is tantamount to economic dragooning. And since, in this
realm, s had previously talked about
commandeering, it’s clear that the court is
really enamored of 18th-century
military metaphors, although they have
switched from a Naval metaphor of commandeering to
an army one of dragooning. So unclear what that means, but
it’s worth keeping an eye on. OK so that’s what the court
did with conditional spending. And I think we’ll be
hearing a lot more about these conditional spending
programs for this reason, that there is this idea
that, at some point, the conditions are too
onerous and that Congress is essentially compelling the
states to adopt these programs. So under the ACA, the statute at
issue in the health care case, it was more than 10% of
the state’s overall budget that the court was
concerned about. And they said that’s
a really large number. So at some point, the court
said it’s too coercive. So one question that
comes out of this case is, well, when do
incentives become coercion. Now, we know the
Chicago answer, right? They don’t. They just become stronger
and stronger incentives. And we would draw charts
and graphs to show that. But the court isn’t
quite there yet. So they’re not thinking
about it that way. There’s a sense that,
well, at some point, the states have no
real choice here. OK, so why are we even talking
about conditional spending? This is where the
history comes in. Well, if you think
about all of these cases as basically being about
Congress wants to do something. The federal government
wants to do something, and it wants to get
the states on board. It needs them for some reason. The most obvious way
would be for Congress to just regulate–
issue direct regulation. It’s in US code. They say, this is
what’s going to happen, and that’s what the
individual mandate was. Congress regulates. But for some other provisions,
Congress needs the state, or thinks it needs
the states, or maybe thinks it can only do
it through the states because it may not have
direct regulatory power under the enumerated
powers of Article I. So that’s where we get to the
case of internal improvements in the 19th century. What’s interesting
here is just to try to re-inhabit this
constitutional universe that people were living
in in that period. So they weren’t thinking so
much of what can Congress compel the states to do. That is often how we
think of these cases now. Instead, it was a
different question– what can Congress do in
the name of the states, and how does the federal
government draw on the states or use them as part of a
larger regulatory program. So in these internal
improvement situations, basically, this is all part of
the tariff and nullification– I always like saying all
these things together because everybody has– I know, you have a high-school
kind of tariff bank. It’s all coming. Here it all is. So I’m just going to say, it’s
all part of the same story. You can think of it this way. The federal government
is sort of expanding in the early 19th
century, not in ways that are really
perceptible to people kind of living their lives. But one of the things
that was happening, because of the tariff
and because of some of these other programs,
is increased federal money. Now, you would think,
why is that a problem. Well, to people in the
early 19th century, some people, that was
a problem because it meant the federal
government will grow. The federal government
will have this money that it will start
throwing around. And there will be these
surpluses or bonuses that the states
will then be forced to deal with because the
federal government has them. And that just means
bigger federal government. So in a lot of these
situations, what’s happening is there’s revenue there. And some parties– a portion
of the Republican Party says, this is great. Let’s use it for navigable
streams, waterways, roads, improvements. And others say, that’s
not what we’re about. We’re not doing Alexander
Hamilton’s commercial republic. We’re not trying to have
manufacturers going on in every town and city. Some people feel
like it will threaten slavery and local institutions. There’s a concern that
expansive federal power could mean an end to those kinds
of economic and other systems. So this is really a
fraught consideration. So in this period, it’s
not just as simple, though, as people saying we
don’t like Congress regulating because they
draw these distinctions in some cases. So for instance, some people
think Congress can appropriate. It just can’t go out
and build the canals, build the turnpikes itself. Other people think,
well, Congress can probably tax and spend
that money in certain ways. But it can’t order
the states to do it. So there are overlays with
a lot of modern doctrine in kind of interesting ways. And James Madison,
not surprisingly, even though this was very
close to the end of his life, is part of some
of these debates. So some of the most famous
moments of confrontation involve Congress
over and over passing these internal improvements
programs, basically saying, wouldn’t it be great to have a
good road in the old Northwest, in the interior, like
Wisconsin, Illinois, Indiana. Yes, of course it would. Will any of the states
do it on their own? No, they don’t have money. They’re not that organized. They might not have
political will. So they start to have
congressional programs of these sorts of projects
and of improving rivers and of improving harbors and
of improving lighthouses. And so what happens
is people in politics start to make arguments about
why this can or can’t be done. And then they go
looking for support. Well, James Madison is
still living at Montpelier, seems to accept correspondence
from people pretty regularly, although he must have
gotten pretty tired of it, because everybody
kept seeking him out. So you get these
moments of Congress passing legislation,
many presidents vetoing the legislation–
although not all. This is often the story–
well, every president vetoed this internal
improvements legislation. They thought it was
unconstitutional. That’s the story you will
often hear in the literature. And that’s not exactly
what’s going on. So let’s talk about
this more concretely. So there’s a little
bit of a paradox here, in that these cases
seem really analogous in certain ways. You can describe them at
a level of abstraction that makes them sound a lot
like the health care case and a lot like modern
highway funding and all these other things. And yet they’re very different
in important ways that make them not perfect analogs. So like I said,
there’s this idea that the conditional
spending power maybe came out of the New Deal. Or maybe it’s something
that was kind of invented to counterbalance moments
when Congress didn’t have broad regulatory power. It’s another way for Congress
to get the states to do things. But I think what the
19th-century example shows is that the Spending
Clause intuitions were there all along, but they have
taken different forms. So to the extent
other scholars have said, well, there
are these debates about internal
improvements; they’re kind of about the
spending power, all they really show
us, if anything, is that there was no
firm original meaning of the spending power. I think it’s true that there’s
no unified original meaning of the spending power. But it’s not true
that there was a sense that all these internal
improvements were unconstitutional. So some presidents
did believe in them. John Quincy Adams,
James Monroe early on said he did, and
pulled back on that. Also, there were a lot more
subtle distinctions going on. As I mentioned, this
idea that Congress might be able to
appropriate the money, but it couldn’t actually
implement or retain jurisdiction over the project. So that’s a refrain
you see a lot. And some presidents,
interestingly, urged constitutional amendments. So Monroe did this. Jackson, in a kind
of indirect way, talked about
constitutional amendments. So there’s a real sense that
they understand or think that some portion of the people
in the United States– and this is a contested issue– but some
portion of people in the US think these improvements
would be good. They’re living out
in the hinterlands of Illinois or something, and
they’d like to have a canal. They’d like to have a turnpike. And so they would like
this program to happen. So you see these presidents
often saying, well, I think it’s
unconstitutional right now. But how about an amendment? So in a series of
letters in 1826, for instance, Madison
again is contacted by Jackson’s Secretary of
State, Martin Van Buren. And Van Buren writes
these letters– they’re sort of
heartbreaking in a way because it’s like,
Dear Mr. President, I hope Mrs. Madison is well. Say, remember your veto
back a decade or so ago of an internal
improvements bill? Let’s talk about
that, and could you say something that maybe
the president and I could sort of use? And Madison takes
this pretty well. And he says, OK,
let’s talk about how we could address this problem. This internal
improvements controversy is just not going away. So Madison starts laying
out structural options. And Van Buren gets very excited
about this and then writes back and is sort of like, how
about text of an amendment. Well, can we use this? Can we attribute it? And so what does Madison
actually propose? Well, the first thing
he says is, everyone is concerned about this. And Madison himself had
been one of the big vetoers of internal
improvement projects. That’s part of the
reason that he was being brought into this debate. So Madison says, why don’t we
just have a functional division of power between the
general government– the federal
government, that is– and the state government. So let’s just say we all
sort of agree that Congress can appropriate funds. But jurisdiction and actual
construction implementation is allotted to the states. So Madison says this has
a captivating aspect. A lot of people
will like this idea. They like these distinctions. They like these institutional
stories about competencies. It’s like he’s reading the
minds of future con-law people. But then he says, no,
but we can’t do it, because it’s too hard to
define this in practice. How will we maintain
this division? And it’s just not
reasonable, he says, to think the nation will
be willing to fund projects without national oversight. So Congress will
say, why should we give you this money
if we know that we won’t be able to say
how the dam is built, how that canal is built. So Marshall says, this is
kind of a realist move here, given the fact that
people generally support internal improvements. Patronage and pork
barreling will come in here. It’s not realistic to think
Congress will just sort of stay behind this barrier. It’ll end up
expanding its power. So he says, let’s talk about
constitutional amendments. So he proposes a couple
of different kinds. One is a constitutional
amendment that basically says, let’s give Congress
an enumerated power over internal improvements. And this is interesting
because all the talk of constitutional amendments
that people have conducted in the 20th and 21st
centuries, you rarely hear them saying, let’s
add something to Article I. Let’s add an enumerated
power, right? There’s the sense that the
enumerated powers are fixed, and you fight about where
your particular program fits. But Madison says, no, let’s
have an amendment that says Congress may make
appropriations of money for roads and canals to be
applied to such purposes by the legislatures
of the states within their respective limits,
the jurisdiction of the states remaining unimpaired. So what does that mean? Congress gives funds
to state legislatures to use for roads and canals. The state legislatures
will carry out the project. OK, well, this is all
pretty telegraphic. He doesn’t really get into this. But what happens
if a state refuses? Well, other draft amendments
that other people had circulated in this period
said things like, well, the states have to consent. You can’t make them build
the road or the canal. But Madison’s plan
didn’t say that. So it’s sort of reasonable
to think, well, OK, so maybe a state could refuse. But he hasn’t really
talked about this. He hasn’t said
consent is explicit. Now, in modern
doctrine, this amendment would raise a lot of red flags. The first would be
commandeering– this idea that Congress is now using
the states to carry out its programs. So the big cases here
are New York v. US, where Congress tries to
get the states to deal with hazardous waste
hauling and disposal. And the problem for the
modern Supreme Court is this idea that Congress is
using the states as its tools and that they’re
not going to be– they’re not really going
to have much choice, and accountability
will be confused. Federalism principles
will be violated. It’s a straight command,
and you can’t do that today. OK, well, so maybe it’s a
commandeering problem today. Is it a conditional
spending problem today, or would it be OK? Well, that seems like another
avenue that might be all right if you sort of said,
well, maybe it’s kind of like offering
highway funding, and it’s kind of like
putting a condition on it. But there isn’t
a condition here. There’s no if-then
in the statement. Madison doesn’t put it that way. So he’s not really troubled
by the view of structure that I think modern
constitutional lawyers would immediately say were
problems with these programs. OK, but then he’s not done. So Madison says, well, also,
if we think that we really want to just give
Congress a broad power here because they’re going to
encroach anyway, so why not just be clear up front? Why not say, Congress
may make roads and canals with such jurisdiction
as the cases may require. So this isn’t just
appropriating the money. This is building the
roads and canals. So you could think of
this as federal engineers are going to go
out and construct the internal improvements. Is this tidier? Well, it’s kind of tidier
because it’s federal all the way down. No one’s going to be confused. Who is this building
the canal here? I don’t know. Oh, I know. It’s the federal
canal building agency. That’s clear. So if I have complaints,
or if I have compliments, I know who to call. So it’s tidier in that way. It doesn’t implicate
commandeering in the same way. It doesn’t seem problematic
for 10th Amendment reasons, because the states aren’t
being used as instruments. But there are other modern
doctrinal concerns for this. So first is just this
idea that, well, now, the federal government
is expanding. Another agency is out there
building canals and turnpikes. And this is a period where there
weren’t many federal agencies. So that would have been
really startling to people. Also, some of these projects
will be purely local, right? So you’re sitting there in
upstate New York, let’s say. And this one isn’t
even purely local. You know, digging a canal– and people may ask,
well, why are you here, federal officials. I mean, Albany to Buffalo,
sure, the song, the mule. But it’s not really
something that even goes outside New York. And that was true with
a lot of these projects. So that would be another
modern doctrinal concern, to the extent that some of
these projects are purely local. This is always a red flag in
doctrine about the commerce power. So if you think again
about the health care case, the individual
mandate side of things, the worry was Congress
didn’t have the power to get to these kinds
of individual decisions. But Madison says,
well, if Congress is going to grab
the power anyway, it’s better to cabinet ex-ante. Then finally, Madison
says, you know, while we’re on the
subject of amendments, he’s always been bothered by the
general welfare clause, which is the provision of Article I
where the taxing and spending power is. It’s always hard to even
know how to refer to it. But basically, the provision
says the common defense and general welfare
and taxing and spending are understood to come
out of that language. Well, Madison– and this is in
kind of the common discussion of this clause– had always felt that it should
be interpreted narrowly, since the drafting
of the Constitution. So here, in 1826,
he says, you know, I don’t like these terms common
defense and general welfare. It seems like it gives Congress
the ability to just regulate anywhere it wants. Oh, general welfare–
let’s have canals. Let’s have internal
improvements. So he says we should
add another amendment. Add one about
internal improvements, but add another
amendment that changes the language of the general
welfare clause to say, either take out the
phrase “general welfare– common defense and
general welfare” or add the following language,
“for the common defense and general welfare
in cases authorized by this Constitution.” So what does that do? Well, it would limit the
general welfare clause to acting simply as a kind
of enabler, a helper clause. It would be analogous to the
necessary and proper clause, in that it would say
Congress can tax and spend to carry out its
enumerated powers, other enumerated powers. That’s contra Hamilton’s
view and the view that we’ve all kind of learned
about the taxing and spending power, which is it’s
pretty independent. And indeed, for
proof of that, think of the health care case, right? In the health care
case, the majority said the provision fails
under the commerce power. It fails under
necessary and proper. But it survives under
the taxing power. You couldn’t say
that in the world that Madison is proposing
because the taxing power would only be parasitic and an add-on
to some other enumerated power. So the idea that it’s
freestanding under the taxing power wouldn’t have made
any sense to Madison. So that was Madison’s
full array of proposals. And you can really
see that they strike at kind of every
different problem that people might have seen
with internal improvements. So his letter with the
proposed amendments crossed in the mail
with one from Van Buren. Van Buren was sending yet
another congressional committee report on the subject
of roads and canals. And in that letter,
Van Buren derides what he calls the lame
attempt of the committee to make out that General
Washington was in favor of internal improvements. But then Van Buren is kind of
unable to restrain himself. And then he says,
well, but here’s what I think Washington
would have thought about internal improvements. So you know, they’re really
trying to figure this out. But there’s also a sense of
what would George Washington have thought of this? We’ll clearly still
be compelling people. OK, so what to make
of all of that, or why listen to James
Madison yet again, in yet another domain? Well, some of this,
I think, tells us when not to listen to
James Madison, in a way, or when to listen to him
only for limited purposes. Because all the structural
and textual elements that Madison told Van Buren,
and through Van Buren, Andrew Jackson, about– all the ones that
were implicated in the internal
improvements debates are still with us today. These are all the things
the court was talking about in the health care case. But crucially, they’re
in different forms. So I think they are a lost
history in that way, and not a direct analog. So as I said, if
Madison had succeeded in his reinterpretation of
the general welfare clause, the health care case could
not have come out as it did. And a lot of people think
that the Chief Justice wrote the opinion
the way he did– he was able to talk
about the commerce power and necessary and
proper as strongly as he did because he had the
backstop of the taxing power to keep that legislation alive. So what would have
happened without that is an interesting question. Second, Madison doesn’t
seem to really distinguish between Congress acting on
individuals and Congress acting on the states. Today, those are
conceptually different parts of the doctrine. So you could think in
the health care case, again, the individual
mandate is about Congress talking to individuals. The Medicaid provision is about
Congress talking to the states. Internal improvements
seems to us like it’s mostly
about what Congress can tell the states to do. But when Madison
makes this connection to the general
welfare clause, that seems more like it’s
talking about federal power over individuals, or at
least blends those concerns– again, not in a way
that is wrong or means we should reshape our doctrine. But it’s completely different. So to the extent we’re
trying to figure out– and you can find
articles like this– what do the internal
improvements debates tell us about this particular piece
of modern legislation– the answer is, well,
you’ve got to be careful making these analogies
because the landscape and the universe
are so different. Now, also remember,
all of this discussion is happening before
the emergence of the modern conditional
spending powers. In the case books, the
first case is US v. Butler. It’s from 1926. There may be an
old notes reference to a case about the
carriage tax in 1796. But that’s pretty different. That’s even before
John Marshall. I mean, that’s really old
constitutional doctrine. So if you even consider
the different modes of congressional
interaction with the states, commandeering as one– Congress to the states, do
this; direct regulation– Congress to the
world, but mostly individuals, buy insurance
or pay a penalty; or conditional spending– Congress to South Dakota,
raise the drinking age, or you’ll lose federal
funding for highways– these are all not– those concerns, I
think, are the big three for modern constitutional
law and federalism. They’re not there
in the 19th century, or they’re there
in different ways. So consent by the states cures
their commandeering concerns. So there’s a big sense
in a lot of these cases, well, you know, yeah, we
don’t think this is right. But gee, if the state consented,
well, it’s probably OK. The Supreme Court today has said
no, state consent doesn’t fly. It doesn’t matter
if they consent. They can’t consent to
giving up their sovereignty. And they’re not worried about
direct congressional regulation as long as there’s
a basis in the text. That’s why they’re going
and thinking about well, could we add an
enumerated power. Is that a possibility? No one talks really seriously
about that these days. They’re worried about the
spending power sort of. I mean, that one is
the hardest in a way because they don’t conceive
of it the way we do. But they don’t seem
to really worry about whether the state’s
being coerced or not. They’re not insisting
on a real condition. And to see this, you
can think about the fix that, in the 1840s, people
started being somewhat more comfortable with for internal
improvements, which was, Congress would give public
lands to the states, with the proviso that
the states use them for improvements–
railroads most often, sometimes lighthouses. And contemporaries seemed to
feel that that solved the worst problems. So to them, the big problem was
Congress actually overseeing internal improvements. This seemed different. Today, our red flags would go
up because we’d think, well, maybe there’s a
commandeering problem here. So their worries about
the spending power are very different. Lands are given to the states. In some cases, it
seems more or less that the states are required
to build the railroad. And there was plenty of
room for private profit. So Illinois Senator
Stephen Douglas was a big proponent of
this mechanism of dealing with internal improvements. And he was
instrumental in setting the path of the
Western Railroad, which was something that occupied
Congress for much of the 1840s. And he was instrumental in
the building of the Illinois Central Railroad, which
is the one that goes right across campus and
along the lake. And that was integral to
north-south and western development. Douglas speculated in land
adjacent to the railroads. So he did get
something out of it. And he was buried overlooking
the tracks of 35th and Lake Shore. And his papers
are at Regenstein. So we’re in the place where
a lot of this happened. And it’s amazing to
think, they would not have understood the
question in the same way that we would have. And it’s not that long ago. This is the early 19th century. It’s not even the 18th century. So what does it mean? What does all of it mean? What does it mean that an
amendment was never passed? It’s hard to say
because it’s clear that people wanted internal
improvements, in the sense that canals, railroads,
steamboats– all of these things, you
could find a constituency that said this is good for us. This brings us connection
with the outside world. This brings us
contact with Europe. This brings us ways of thinking
about individual rights. This brings groups
that are left out ways of thinking about
how they might get in. It brings economic development. A lot of presidents support
internal improvements, at least for these
national projects. And the barrier is
seen as constitutional. So why no amendment? Well, we can look
to Douglas for this. An idea of, I guess,
accommodation through practice– they did come up with
a work-around In the 1840s– 1846, he said, “There
are some powers in the government
that, by this time, ought to be conceded because
of longstanding use.” It’s kind of deflating as a
con-law person, I have to say, to think, really, people
just keep doing stuff, and that becomes OK? But that’s historical
gloss, Youngstown. So maybe it is OK. And also, I think it just
shows us the universe, again, is so different. And what we think are the
problems about these kinds of federalism arrangements were
different problems from what they thought were problems. And yet here we are living
on in their universe with their precedents. So it’s a cautionary tale. But I think it’s a hopeful
tale, too, about legal history. So now, I’m happy to
take people’s questions about any of that. Oh, come on. I don’t have a seating chart. [LAUGHTER] ALISON LACROIX: It’s not fair. But I know that tariffs,
all of this stuff, is sort of overwhelming. But on the other hand,
the health care case has really giving life to all
of this conditional spending stuff. Yeah? STUDENT: Do you see
the health care case as reopening the door
for the Supreme Court to revisit South Dakota v. Dole? Or do you think they’re going to
draw the distinction somewhere? ALISON LACROIX: Yeah, it’s
an interesting question because Dole– I mean, on the one hand,
conditional spending is so well-established. But then when you press people,
well, what’s the case for that, it’s always, well, Dole. And it’s not a very long case. It’s only about 12 or 13 pages. So it doesn’t necessarily
bear all this weight. What I suspect they will do– I mean, who knows? But one thing I
think they could do, and they’ve left room for
themselves on this, is say, well, in Dole, it was
a much smaller percentage of the state’s overall revenues. And there is that language in
Dole where they say something– I think it’s less than 5%. And there’s some
disagreement, you can tell, between the justices in Dole
about whether that matters. But one idea that did come
out of Dole was sort of well, it’s kind of a de minimis idea. You know, and that’s
also because it’s just the new funding. But it is interesting
then on the flip side to think, OK, so that
language was there in Dole. But when the drafters of
the health care legislation drafted it, they didn’t
think, oh, we probably can’t threaten them with
loss of all of the funding. That’s going to be
a lot of funding. So I think it’s
there in Dole, but I don’t think they’ll
cut back on it, because I mean,
first of all, there’s a practicality question
of just how many programs that would involve. But also, I think we’ll see
the legislation in future being tailored to
say things like, it’s only the new funding. Now, there is a
question about, well, what if the new funding
is some huge amount. If you accept the
program, you’ll get this enormous
amount of money that could be a large
part of your revenue. And if you don’t,
you don’t get it. So do you get to count that? My guess is the court there
would not be as troubled by it as they are in the
health care case. But yeah, it
certainly seems like– and you can see in Dole
also, some of the justices say, what about coercion. We should talk about coercion. Don’t talk about coercion,
coercion, coercion. So I think it is there. You can find Dole
and harmonize it. You can find ways to harmonize
Dole with the ACA case. Thanks. [APPLAUSE]

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