Constitutional Law Class Notes 1/29/04


Next week, we’ll get to Sabri.  In fact, we’ll basically spend all next week on it.  We’ll start with the lower court opinion.  Foley wants us to know that Section II of the Court of Appeals decision is on statutory construction while Section III is on constitutional analysis.  So just skim Section II.  On Monday, we’ll only talk about the constitutional issues.


South Dakota v. Dole


What’s it about?  Congress let the Secretary of Transportation knock off 5% of federal highway funds to states with drinking ages less than 21.


An aside: One of Foley’s primary goals in using the Socratic Method in class is practicing talking about the law.  One thing we’re doing as we practice is focusing in on the most important things in each case.  That’s something you’ll need to do in your future lawyerly life.


So what are the key details about the federal law?  It will withhold money from the states unless they raise their drinking ages.


Suppose Congress hadn’t done this through spending, but instead simply made a law that said “Nobody can purchase an alcoholic beverage if they’re under the age of 21.”  Would that be within the Commerce Clause?  Sure, probably.  But it would violate the Twenty-First Amendment.  If we only had the Commerce Clause, then there would be no problem.  We’re talking about the sale of alcoholic beverages, and this activity is sufficiently commercial that even intrastate alcohol sales can be regulated.  But the Twenty-First Amendment removes some things from Commerce Clause authority that would otherwise be within Commerce Clause authority.  The Supreme Court assumes that Congress could not enact a direct regulation of the national drinking age under the Commerce Clause.  If it was within the Commerce Clause authority, then there wouldn’t have to be any separate Spending Clause analysis.  You only need to list your law under one of the enumerated powers.  If there was Commerce Clause power, you might plausibly have a Tenth Amendment problem.


But because we assume it couldn’t be done under the Commerce Clause, we need to try it out under the Spending Clause.  That’s what the Court does.


Note that Congress can spend with respect to matters that are beyond any other power.  For example, with education in Lopez, education is said to be something that especially belongs to the states.  But the spending power is different!  The federal government can dole out money for education to the states and condition it upon the teaching of a particular curriculum, even if they can’t directly mandate such a curriculum.  The Spending Clause has a broader scope than the Commerce Clause, but it’s not necessary more powerful than the Commerce Clause.


Also, the Tenth Amendment doesn’t give Congress any powers.  In fact, a minority of the Justices think this Amendment is irrelevant.  The majority believes that it is a states’ rights provision that doesn’t give Congress any powers, but only takes away powers.  The Tenth Amendment is analytically different from either the Spending Clause or the Commerce Clause.  The latter are “power” provisions; the former is a “rights” provision.


The Supreme Court says that if South Dakota doesn’t want to lower the drinking age, they can “Just Say No!” and give up the 5% of the highway budget they get from the federal government.  Thus, it is claimed, there is no intrusion on state sovereignty.


So let’s focus on the Spending Clause.  The Court announces a four-point test for Spending Clause cases:


1.     The conditions must be in pursuit of the general welfare.  Congress will get a lot of latitude in making this judgment.  Some cases suggest that the Court will give Congress a pass on this question every time.

2.     The conditions Congress places on grants must be related to the purpose of the money itself.  If the money comes with “strings attached”, there might be a connection between the money and the “strings”.

3.     The conditional nature of the grants must be unambiguous.  The statute must clearly spell out to the states what their choice is.  What are the strings being attached to the money?  It can’t be a “gotcha” where the money comes first and the conditions come afterwards.

4.     Congress can’t induce the states to perform any action that would itself be unconstitutional.  The Twenty-First Amendment would be an independent bar to direct regulation, but it’s not an independent bar with respect to the spending power.  That’s because the states have a choice!  The Twenty-First Amendment says that the states have a choice of how to regulate alcohol.  Why isn’t the quid pro quo that’s being offered (money for drinking age) outside the scope of the Twenty-First Amendment?  The Court basically says that in the domain of just spending money and offering choices rather than making decrees, the Court will act like the Twenty-First Amendment is not a bar as far as the Spending Clause goes.  This is kind of by fiat and could have gone the other way.  The court says that the federal government can’t give money to the states if the states agree to give up something that the states are not entitled to give up.


If you read between the lines, the Court suggests that South Dakota didn’t do a good job presenting their case.  At oral argument, South Dakota conceded that they weren’t making the Spending Clause argument.  Justice O’Connor thinks the argument that they didn’t make was a good argument and doesn’t want to give it up!


Foley says that states’ governments have historically been poorly represented in the Supreme Court.  That’s changing for the better (says Former Solicitor General Foley).


The relatedness prong


What’s the difference between what the majority and the dissent say about this prong?  This is a tricky one!  Why did O’Connor have a different view of relatedness than the majority?


The money was related to highway construction and repair.  The strings were related to drinking age.  The perception of young adults is that they are more likely to engage in drunk driving than other people.  The majority thinks that the strings and money are legitimately connected.


O’Connor’s dissent


Justice O’Connor wanted to look at relatedness in a little more depth.  What does O’Connor mean when she says that the money must be spent on highway safety itself?  O’Connor says there will be drunk drivers causing accidents in other age groups, plus young drivers who will drive safely.  O’Connor says the law is thus both over- and under-inclusive.  This concept becomes very important when we get to Equal Protection law.


But when a condition is related to the spending versus unrelated to the spending?  O’Connor says that conditions are acceptable, and regulations are not.  Why is the age limit a regulation and not a condition of the spending?  O’Connor’s key concept is that relatedness means: “Here’s the money, you can spend it for X, Y, and Z, but not A, B, and C.”  It’s conditions on how the money is spent.  As opposed to: “Here is some money, and in exchange for the money you must agree to obey the following rules.”  She would only allow the money to be conditional based on how it’s spent.


O’Connor says a condition is regulatory when the restraint goes beyond that wad of money itself.  In order to get such money, you must agree to spend any money you get in a certain way.  O’Connor believes this is outside of the Spending Clause.  This crosses her line of permissibility because it’s a constraint not on the money itself, but actually on the behavior of the recipient of the money.  “Constraint on money yes, constraint on people no.”


This case is from 1987 and the composition of the Court has changed considerable.  Does O’Connor now have more allies than she did in 1987?  She was all alone then.  But maybe she could get Thomas and Kennedy.  She didn’t get Scalia or Rehnquist’s votes, but that might just be because South Dakota argued the case poorly.


Sometimes you can differentiate one case from another by saying “I’m presenting a different argument than in the case you decided before.”  Really good lawyers will read the briefs and the transcripts.  If they see an argument missing from the earlier case, then they can come to court and say the case needs another look because there’s a whole new argument.


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