Is the stimulus bill unconstitutional?

Professor Ronald Rotunda is the prominent constitutional law expert now at Chapman Law School. In the column “Some strings attached” for today’s Chicago Tribune, Professor Rotunda looks under the hood of the so-called stimulus bill. In part the stimulus bill is calculated to expand welfare and unemployment programs. These provisions have prompted a few governors to reject the related funds.

Professor Rotunda points out that Congress anticipated these governors. Seeking to bypass such uncooperative governors, Congress added a unique provision to the bill (in section 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.”

Professor Rotunda asks: 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? Professor Rotunda observes: “It might appear quaint to note that the U.S. Constitution does not create a central government of unlimited powers. Congress only has those powers that the Constitution gives it either expressly or by implication. That’s a lot of power, to be sure, but it’s not unlimited.”

Section 1607(b) appears to cross the line. Quoting Justice Black, Professor Rotunda writes:

“The proceedings of the original Constitutional Convention show beyond all doubt that” the framers denied Congress “the power to veto or negat[e] state laws,” but that is exactly what subsection (b) does. To give Congress such power “distorts our constitutional structure of government.” But that is what subsection (b) does.

Professor Rotunda finds it unlikely that subsection (b) will survive constitutional challenge. He asks whether the unconstitutional provision can be severed from the rest of the bill, or whether the whole bill must fall. This question he leaves open. Even if subsection (b) elicits the challenge and meets the fate it deserves, the rest of the bill will surely survive. Professor Rotunda’s column nevertheless adds to the evidence that the bill is a monstrosity.

UPDATE: I wrote Professor Rotunda this morning to ask if the stimulus bill included a standard severability provision that would save it even if one of its provisions were found unconstitutional. He responds: “I couldn’t find one. The bill is longer than my arm, but I looked and searched and couldn’t find it.”

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