bernie shmegma wrote:
http://caselaw.lp.findlaw.com/scripts/g ... &invol=203
Matthies wrote:I don't think I've read Dole, cite anyone?
But as to taxing and spending power and interstate commerce, tax and spend can be used as a blunt instrument to force states to accept a congressional mandate based on Congresses Commerce power (because remember congress has no police power, then can say this violates the commerce clause, which is our personal domain, but they have not police power to force states to do what they said. Well except the blunt instrument that is the tax and SPENDING power. Example Louisiana drinking age kept at 18, fed said that's a commerce issue raise it to 21, state said its a health/sfty issue, fed says our commerce trumps your state health/safety issue, go to 21. Louisiana said no, and congress said well we will send in our police force then. Whoops, wait we don't have one. but hey we got the spending power, and we gots your federal highway money, and if you don't raise legal drinking age to 21, we won't spend it in your state. And the highways fell to crap and LA said OK, its 21 now, please fix our roads. Spending power is about the only blunt instrument congress has to enforce its mandates under commerce clause if a state refuses.
The point is this:
The spending power is a separate enumerated power; it can be exercised in and of itself.
As such, Congress can use the spending power to get states to waive challenges to laws that may not otherwise pass under a separate enumerated power.
Yes Congress could have passed a law regulating the drinking age based on their commerce power, but they didn't have to. Dole stands for the proposition that Congress can use the spending power to pass a law/enforce a law/even encourage states to waive sovereign immunity so long as their use of the spending power:
1)Is in pursuit of the general welfare
2)Imposes unambiguous conditions so that the states may make knowing choices
3)Imposes conditions which are reasonably related to a federal interest
4)Imposes conditions which are not barred by any other independent constitutional provision.
At times there may be some interplay between the two powers, but the fact is they exist independent of one another. They do not need to rely on each other. Congress could conceivably use their spending power to effectuate a law or regulation that has absolutely no effect on interstate commerce, and does not implicate the commerce power at all.
That's all; that's it; leave it alone.