Abstract

The Spending Clause of the Constitution, unlike all the other enumerated powers granted to Congress, allows its exercise to provide for the general welfare. This Article addresses the extent to which that aspect of the Spending Clause permits the federal government to circumvent limits inherent in the other enumerated powers. It considers why the Spending Clause alone would permit pursuit of the general welfare and posits that spending is different from the other enumerated powers in that it necessarily involves a voluntary transaction: if the federal government spends money to buy a good or service, there must be a willing seller. This Article uses this insight to reanalyze some old-chestnut spending-power cases, from which it derives the principle that the spending power is limited to spending subject to budget constraints. This in turn means that the government may not exercise the spending power for purchases induced by a threat that is unrelated to the interest of the federal government in ensuring that it obtains the quality of the goods or services it purchases and does not spend more than necessary to obtain them. The focus on spending as involving the exercise of noncoercive powers of government leads to the further conclusion that the federal government should not have the power to purchase coercive exercises of governmental power from the states. This Article applies these two limitations to the Trump Administration's threats to withhold grant funding from sanctuary cities and concludes that certain requirements the Administration seeks to impose on local and state governments as a condition on receipt of grant money is beyond the federal government's spending power.

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