Key Constitutional Grants
of Powers to Congress
Article I, Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States...
In the 1987 case of South Dakota vs Dole, the Supreme Court considered a federal law that required the Secretary of Transportation to withhold 5% of a state's federal highway dollars if the state allowed persons less than 21 years of age to purchase alcoholic beverages. South Dakota, which allowed 18-year-olds to drink and stood to lose federal funds for highway construction, sued Secretary Dole, arguing that the law was not a constitutional exercise of the power of Congress to spend--but rather was an attempt to enact a national drinking age. In upholding the federal law, the Court announced a four-part test for evaluating the constitutionality of conditions attached to federal spending programs: (1) the spending power must be exercised in pursuit of the general welfare, (2) grant conditions must be clearly stated, (3) the conditions must be related to a federal interest in the national program or project, and (4) the spending power cannot be used to induce states to do things that would themselves be unconstitutional. The Court considered--perhaps unrealistically--the grant condition to be a financial "inducement" for South Dakota to enact a higher drinking age rather than financial "compulsion" to do so--suggesting the possibility of a different result if a higher percentage of funds had been withheld. In dissent, Justice O'Connor argued that spending conditions should be found constitutional only if they related to how the federal grant dollars were to be spent.
In 2012, the Court considered whether provisions of the Affordable Care Act, which withheld federal funds from states that failed to expand Medicaid coverage in specified ways, was within the power of Congress under the Spending Clause. In National Federation of Independent Business v Sebelius, the Court held that it was unconstitutional to threaten states with the withholding of all federal Medicaid funding, including their existing funding, for failing to expand coverage in the ways Congress sought to encourage. Chief Justice Roberts, in a part of his opinion joined by Justices Breyer and Kagan, concluded that federal funds withheld, representing perhaps 10% of a state's entire budget, was so substantial that states would have no real choice but to give into Congress's demands. As a result, seven justices agreed that the Affordable Care Act's Medicaid expansion provisions violated the principle that the spending power can not be used to coerce states into enacting legislation or participating in a federal program. The Court distinguished South Dakota v Dole, noting that the funds potentially lost by South Dakota in that case representing only one-half a percent of the state's budget.
The Spending Clause
by Samuel R. Bagenstos
Frank G. Millard Professor of Law at the University of Michigan Law School
by Ilya Somin
Professor of Law at George Mason University Antonin Scalia School of Law; Adjunct Scholar at the Cato Institute
The Spending Clause gives Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and the general Welfare of the United States.” Beginning in the 1790s, there has been a longstanding debate over the scope of the spending power and the meaning of “general welfare.” James Madison and other Democratic-Republicans argued that the Clause authorizes spending only when it implements other powers granted to Congress in Article I of the Constitution. Alexander Hamilton and the Federalists took a broader view. Hamilton famously argued that the Clause authorized spending, so long as “the object, to which an appropriation of money is to be made, must be general, and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.” While Hamilton did not advocate a completely unbounded interpretation of “general welfare,” under which Congress could spend money for virtually any object it considers beneficial, he and the Federalists did believe that the Clause authorized a wide range of spending for purposes that go beyond Congress’s other enumerated powers, so long as they were sufficiently “general.”
The debate between the Madisonian and Hamiltonian views continued throughout much of the nineteenth and early twentieth centuries. As a general rule, Democratic presidents and members of Congress tended to adopt positions similar to Madison’s, or slightly broader. Thomas Jefferson, Madison, James Monroe, James Polk, James Buchanan, and Grover Cleveland all opposed bills authorizing spending on local infrastructure and disaster relief projects, citing constitutional objections. By contrast, the Federalists, the Whigs, and the Republicans tended to take a broader view of congressional power, closer to Hamilton’s position. Whig leader Henry Clay, for example, argued that the Clause authorized his proposal for a wide-ranging “American System” of canal and roadbuilding.
For most of this time, federal grants to state governments were relatively rare, and only a small portion of state finances. The grants that were enacted were mostly—though not entirely—for purposes that could be readily defended even on Madisonian grounds, such as national defense and relief of state debts incurred in the Revolutionary War. Federal grants to state governments became more important in the twentieth century, and the constitutional controversies over them became more significant—especially when it comes to “conditional” grants, which require states to comply with federal dictates of various kinds in order to qualify for their share of the funds. States today rely heavily on federal spending to provide public services; federal funds account for just under a thirdof the average state’s budget. The more conditions Congress can place on the receipt of federal funds, the more control Congress can exercise over the operation of state governments.
In two 1923 cases, Massachusetts v. Mellon and Frothingham v. Mellon, the Supreme Court sharply limited the ability of state governments and individual citizens to challenge such grants. The Court ruled that challengers lacked standing unless the spending conditions inflicted “some direct injury suffered or threatened.” Applied expansively, this principle might make it almost impossible for either states or individual citizens to challenge most conditional spending programs. However, the Court has allowed challenges to some conditional programs in cases where states and individuals demonstrate sufficient potential “injury” to satisfy the Justices.
The Court’s first key case on the scope of the Spending Clause came in 1936. In United States v. Butler (1936), the Court invalidated the first Agricultural Adjustment Act (AAA), a statute that paid farmers to reduce their crop production. The Court expressly took Hamilton’s side of the debate with Madison. It declared, “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”
Nonetheless, the Court held the AAA unconstitutional on the ground that “[t]he act invades the reserved rights of the states.” Under the Commerce Clause doctrine of the time, evidenced in cases like United States v. E. C. Knight Co.(1895), Congress lacked the power to reduce agricultural production directly. The Court concluded that Congress could not pay farmers to achieve the same ends indirectly. Although the Butler Court said it was adopting the Hamiltonian position, a strong case can be made that its decision was more consistent with the logic of the Madisonian position.
Since Butler, the Court has repeatedly endorsed Hamilton’s position—and has arguably gone beyond Hamilton in broadly deferring to Congress’s determination of what expenditures serve the “general welfare,” as in South Dakota v. Dole (1987). Butler’s invalidation of the AAA, by contrast, is now an outlier.
The judiciary’s focus has turned to evaluating the conditions federal spending statutes place on state governments. The Court has invoked three possible constraints on federal grants, with mixed results. First, the Court has required that the federal government make its conditions clear at the time the states accept the grants. Arlington Central School District v. Murphy (2006). This rule makes it harder to impose grant conditions by requiring precise drafting. But it does not actually stop Congress from imposing any conditions it wants, so long as they are clear enough. The Court has, in a few cases, ruled against the federal government in grant cases, because the condition in question wasn’t sufficiently clear.
Second, the Court said that a condition might be unconstitutional if it was too loosely related to the purpose of the grant to which it was attached. But a grant’s purpose can typically be described broadly enough to ensure that the relatedness doctrine imposes few meaningful limitations. In South Dakota v. Dole, for example, the Court upheld a law conditioning receipt of federal highway funds on states’ raising their drinking ages to 21, because both the funding and the condition promoted “safe interstate travel.”
Third, the Court indicated that Congress’s “financial inducement” might sometimes be unconstitutionally “coercive.” But the Court never actually ruled that a condition coerced the states until its 2012 decision addressing the Affordable Care Act (ACA), NFIB v. Sebelius. One provision of the ACA required states that participated in Medicaid to expand their Medicaid programs to all adults with incomes up to 133 percent of the federal poverty level. In a ruling endorsed by seven of nine justices, the Court held that the threatened loss of allMedicaid funds to states that refused to expand their programs rendered the offer unconstitutionally coercive.
Chief Justice Roberts’s pivotal opinion pointed to three aspects of the Medicaid expansion he found crucial. First, an extremely large amount of money was at stake, making the threat a “gun to the head” of states. Federal Medicaid funding accounts for some 10 to 20 percent of the average state’s revenues. Second, the expansion “transformed” Medicaid from the provision of health care for particular categories of needy people (the elderly or those with disabilities or with children) to a universal guarantee of health care for relatively poor. Third, states could not have anticipated, when they entered Medicaid many years ago, that Congress would later condition continued participation in that program on entry into the “dramatically” transformed program created by the ACA.
NFIB is still the only time that a majority of the Court has invalidated a spending condition because it coerced the states. It remains unclear what, if any, other statutes might prove coercive on the Chief Justice’s analysis, which blended concerns about the uniquely large stakes with aspects of the notice and relatedness requirements. But the Court’s decision does show that there remain some judicially enforceable limits on the conditional spending power.
Fiscal 50: State Trends and Analysis, PEW Charitable Trusts (July 28, 2016).
Declare War Clause
by Michael D. Ramsey
Professor of Law at the University of San Diego School of Law
by Stephen I. Vladeck
Dalton Cross Professor in Law at the University of Texas at Austin School of Law
The Constitution’s Article I, Section 8 specifically lists as a power of Congress the power “to declare War,” which unquestionably gives the legislature the power to initiate hostilities. The extent to which this clause limits the President’s ability to use military force without Congress’s affirmative approval remains highly contested.
Most people agree, at minimum, that the Declare War Clause grants Congress an exclusive power. That is, Presidents cannot, on their own authority, declare war. Although it is somewhat more contested among scholars and commentators, most people also agree that Presidents cannot initiate wars on their own authority (a minority argues that Presidents may initiate uses of force without formally declaring war and that Congress’s exclusive power to “declare war” refers only to issuing a formal proclamation).
In the early post-ratification period, the clause’s limit on presidential warmaking was read broadly. Many key founders, including Alexander Hamilton, George Washington and James Madison, referred to the clause’s importance as a limit on presidential power. In the nation’s early conflicts, Congress’s approval was thought necessary – not only for the War of 1812, for which Congress issued a formal declaration, but also for lesser uses of force including the Quasi-War with France in 1798, conflicts with the Barbary States of Tripoli and Algiers, and conflicts with Native American tribes on the Western frontier (all of which were approved by Congress, albeit without formal declarations).
In modern times, however, Presidents have used military force without formal declarations or express consent from Congress on multiple occasions. For example, President Truman ordered U.S. forces into combat in Korea; President Reagan ordered the use of military force in, among other places, Libya, Grenada and Lebanon; President George H.W. Bush directed an invasion of Panama to topple the government of Manual Noriega; and President Obama used air strikes to support the ouster of Muammar Qaddafi in Libya. Some commentators argue that, whatever the original meaning of the Declare War Clause, these episodes (among others) establish a modern practice that allows the President considerable independent power to use military force.
In general, most scholars and commentators accept that presidential uses of force comport with the Declare War Clause if they come within one of three (or possibly four) categories, though the scope of these categories remains contested. First, Presidents may use military force if specifically authorized by Congress. Authorization may come from a formal declaration of war, but it can also come from a more informal statutory authorization. For example, after the September 11, 2001 attacks, Congress authorized the President to use force against those who launched the attacks and those who supported or assisted them. Sometimes, authorizations are fairly specific (as when Congress authorized President George W. Bush to use force against Iraq); sometimes they are more open-ended, as when Congress authorized the use of force to protect U.S. interests and allies in Southeast Asia, leading to the Vietnam War. Most people agree that presidential actions pursuant to such authorizations are constitutional, although there may be debate about how broadly to read any particular authorization. More controversially, Presidents have claimed authorization from informal or indirect congressional actions, such as approval of military spending, assent by congressional leaders, or even Congress’s failure to object to ongoing hostilities.
Second, Presidents are thought to have independent authority to use military force in response to attacks on the United States. At the 1787 Philadelphia convention, Madison described the Declare War Clause as leaving the President with authority to repel sudden attacks. The scope of this power is sharply contested, however. Some commentators think it includes defense against attacks on U.S. citizens or forces abroad, in addition to attacks on U.S. territory; some would extend it to attacks on U.S. allies or U.S. interests, defined broadly. Some commentators think it includes defense against threats as well as actual attacks. Some think it allows the President not only to take defensive measures but also to use offensive force against attackers.
Third, Presidents may use other constitutional powers – principally the commander-in-chief power – to deploy U.S. forces in situations that do not amount to war. For example, President Bush’s deployment of troops to Saudi Arabia after Iraq’s invasion of Kuwait in 1990 probably did not implicate the declare war clause because at that point the troops were not involved in combat. Similarly, deployment of U.S. troops as peacekeepers (as President Clinton did in Bosnia) likely does not involve the United States in war and thus does not require Congress’s approval under the Declare War Clause. More controversially, it is claimed that involvement in low-level hostilities may not rise to the level of war in the constitutional sense. President Obama argued on this ground that U.S. participation in the bombing campaign in Libya in 2011 did not require Congress’s authorization. However, this position is strongly disputed by other commentators. A related argument, also controversial, is that using force against non-state actors such as terrorist organizations does not amount to war, and thus does not implicate the Declare War Clause.
A fourth potential category is using force under the authority of the United Nations, which some commentators have argued can substitute for approval by Congress. Among other things, President Truman argued that his use of force in Korea was a “police action” to enforce the UN Charter, not a war. However, Presidents have generally not relied on this source of authority and it is less well accepted, even in theory, than the prior categories.
The law of the Declare War Clause is unsettled in part because there have been very few judicial decisions interpreting it. In the Prize Cases in 1863, the Supreme Court upheld as a defensive measure President Lincoln’s blockade of the southern states following their attack on Fort Sumter, but was ambiguous as to whether the authority for the blockade came from Article II, from specific statutes Congress had passed in 1795 and 1807, or some combination of both. And in dicta, the Court noted that the President could not begin hostilities without Congress’s approval. Earlier cases, such as Bas v. Tingy (1800), referred generally to Congress’s broad powers over warmaking without giving specific guidance on the President’s power. But in modern times, courts have generally avoided deciding war-initiation cases on the merits, based on rules that limit what types of disputes courts can resolve, such as standing or the political question doctrine. As a result, the precise contours and implications of the Declare War Clause remain unresolved today—leaving resolution of disputes over particular uses of force by the President to the political process.