Power Line thinks that at least one important section may well be, based on the arguments of Professor Ronald Rotunda. The question arises over whether Congress can override state constitutions to bypass governors who don’t want to accept the
heroin stimulus money:
The aphorism, he who pays the piper calls the tune, is one that Congress understands quite well. If the state accepts funds, it also accepts a host of restrictions. For example, the plan increases, temporarily, the money it sends to states to fund various welfare programs. To receive that money, states have to add thousands of new people to the welfare rolls. In two years, the federal largesse stops, but the new welfare recipients are still there.
Consequently, several governors have said that they might simply refuse the money. Most are Republican, but recently the Democratic governor of Tennessee has joined the chorus. The stimulus bill, for example, gives $7 billion to the states to add to their unemployment trust funds, but to receive this "gift," a state has to change its formula so that it makes more people eligible for benefits, which leaves a long-term obligation on the system.
Because some governors might not accept the money, Congress added a unique provision, in subsection 1607(b): "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."
If state law does not give the state legislature the right to bypass the governor, how can Congress just change that law? Where does Congress get the power to change a state constitution?
Fans of federalism and limited government, take note. Professor Rotunda argues that subsection 1607(b) is not supported in the federal Constitution by either the commerce clause or the power given to Congress to tax and spend. He cites Justice Hugo Black’s opinion that the federal Constitution does not grant Congress the "power to veto or negat[e] state laws…" Rotunda makes an interesting argument, and I’d like to see it tested in court. Scott at Power Line notes that the bill does not seem to contain the usual severability clause, which protects other sections of a bill should a portion be struck down. Thus, a case striking down 1607(b) might kill the whole stimulus package.
We’ve been down this road before. Could a suit challenging this provision be the new Schechter? And, since PBO has compared himself to FDR, could he in reaction then try to emulate Roosevelt in another way?