A student sent this insightful question this morning:
QUESTION: If I'm not mistaken, the spending power is given to Congress by the language of Art 1, Sec 8, Clause 1 which states "...provide fro the common defence and GENERAL WELFARE of the United States." So from my understanding of reading the clause, the power enables Congress to SPEND, i.e. raise funds, collect taxes and give federal grants in order to further what is, what they deem, within this "general welfare" of the U.S.
What I don't understand is the connection between spending for the "general welfare" of the U.S and litigating on cases that have to do with "conditioned" federal funds. Usually, states try to argue that something is beyond Congress' scope to regulate. Are they now arguing that states have a right to these federal grants, and conditioning these grants on such coercive UNRELATED statutes is violating their right to a federal grant?
I suppose I just don't see how a state could claim that they have a right to federal aid (unless of course they are in dire economic situations or emergency situations of that nature). Assuming they do have this right, does the spending clause essentially give Congress the authority to say when/where/what these federal grants will be allocated?
ANSWER: You are right in your intuition: the states have no freestanding "right" to federal funds. Thus, that is not the issue they are litigating. Rather, the relevant question (more or less) is whether Congress is using its spending power to actually regulate (i.e., coercively mandate certain behavior of) the states. And this is where the "general welfare" you reference matters. Congress has the authority to tax and spend for "the general welfare," which means there is basically no limit on the power (at least as a matter of constitutional law) with respect to its subject matter. But Congress's authority to regulate is circumscribed, as we have seen. Congress must fit its regulation within one of the other enumerated powers -- that is, a power other than its power to tax and spend. Thus, a state like South Dakota in South Dakota v. Dole is arguing that, because the conditions attached to the highway funds are so far afield of the spending program on which the conditions have been placed, the condition is esssntially a regulation of the state's conduct. As such, it would not be automatically unconstitutional, but Congress would have to justify it in some way outside the Speinding Clause (such as as a regulation of interstate commerce). Notice, too, that if the spending condition in Dole were considered a regulation rather than a legitimate condition on the highway spending program, there is also arguably a Tenth Amendment "commandeering" issue.