Wednesday, March 11, 2009

S.C. Governor Rejects Stimulus As Is, Seeks Waiver

South Carolina Governor Mark Sanford yesterday wrote to members of Congress detailing his objections to the federal stimulus act, stating his intent to reject portions of the federal money for ongoing state needs, and indicating that he'll seek a waiver from the White House to use the governor's portion of the stimulus funds--about 25% of South Carolina's total allocation, or about $700 million--to pay down the state's debt.  If the White House declines, Sanford will reject the money.  (Sanford's position on federal bailouts and stimuli, by the way, is not entirely new.  He was also highly critical of the Bush administration financial bailout plan.)

The federal government, of course, can impose conditions upon its funds to the states, within certain boundaries.  And State's, of course, can accept or reject the conditions (along with the funds).  But Sanford's move raises the question: How?

The federal stimulus act includes a provision--inserted by South Carolina Democratic Congressman Jim Clyburn--that allows state legislatures to bypass their governor's rejection of federal stimulus funds merely by adopting a concurrent resolution.  Section 1607(b) of the act (page 190) reads:

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.

The act thus cuts out the governor, without regard to whatever state law may have to say.

Jack Balkin over at Balkinization suggests that this may well be unconstitutional: It depends on what state law says about the legislature's ability to accept the funds on behalf of the state when the governor would reject them.  (According to ABC News, Clyburn said in response, "I'm not a constitutional authority, I'm not a lawyer, and I will let lawyers and constitutional scholars argue that point and that's why we have courts."  Moreover: "I don't know whether or not it's constitutional.  Whatever is constitutional is whatever the Supreme Court says it is.")

If 1607(b) is inconsistent with state law on who gets to decide whether to take federal funds, it most certainly is unconstitutional--every bit as much as the federal government dictating the location of a state capitol.  But recall that 1607(b) wasn't the only portion of the act where the federal government attempted to direct the democratic workings of state government: The original H.R. 1 contained a provision denying funds to Illinois if Blagojevich were still in office (!).

Whatever one thinks about Sanford (and other Republican governors threatening to reject the funds) and Blagojevich, Congress seems to be trying to stimulate much more than the economy: It apparently also seeks to stimulate how state governments work.  This it cannot do.

SDS

http://lawprofessors.typepad.com/conlaw/2009/03/sc-governor-rej.html

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