But is ‘stimulus’ Constitutional?

An interesting article from Ronald D. Rotunda in the Chicago Tribune, this morning.

Because some governors might not accept the money, Congress added a unique provision, in subsection 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.”

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?

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It is unlikely that subsection (b) will survive constitutional challenge. Does that mean that the entire law is unconstitutional or only subsection (b)? That depends on whether Congress considered the entire bill to be a uniform whole, so that if one part must fall, all must fall. Or, did it want the courts to sever the unconstitutional part of the law and leave the remainder intact?

It may seem silly to worry about such matters when we know that Congress was in such a hurry to enact this bill that a great many congressmen—perhaps all of them—did not have a chance to read all of it. But, the courts will still have to decide the severability issue and invalidate more than subsection (b).

I caught hell recently on another blog for raising the whether or not the action of Obama and the Democrats in Congress was actually constitutional and this matter.  Correction; I caught hell for even raising the question.

Yet, Rotunda is a professor at Chapman University’s School of Law. if there’s anyone on the planet who is capable of raising such questions it is he.

The issue, as he points out, is that of state’s rights.  The issue there and he is protecting the people from the Federal government.  Rotunda says, correctly:

As Justice Hugo Black reminded us over 40 years ago, “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.

With that in mind, we now have perhaps an interesting tie into a recent case in Vermont that was in the headlines recently, Wyeth v. Levine. (06-1249).

In that case, we had a professional guitarist by the name of Diana Levine lose her arm because of improper administration of an anti-nausea drug. Of course Levine sued. The claim was that the drug company should be held liable for the incident, owing to lack of sufficient warning labels, according to the state’s standards. The drug company, Wyeth, countered that their labeling already conformed to federal standards. The question then, because if the federal government had primacy in the matter. The Supreme court ruled they did not, and ruled for the plaintiff.

The implication here is far wider, I think, and speaks loudly to the issue of states’ rights.  And thereby, it speaks to the case of the ‘Stimulus’, as well. It speaks to the question of whether not the actions of Mr. Obama and congressional Democrats are in fact constitutional.  I’m no lawyer, but if I had to make a semi educated up survey shun to the matter I’d have to say to no they were not , and I would have to conclude that the question of whether or not their actions were constitutional were eminently reasonable.

Which is as well, since I have serious doubts on it being the last.