Jim Geraghty notes a curious provision in the stimulus bill directed at the State of Illinois:
None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois.The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.
It seems to me that this move is unconstitutional. The federal government may condition receipt of federal funds on doing certain things. For example, the Supreme Court upheld the federal government only allowing for highway funding to the states if they raised the drinking age to 21. South Dakota v. Dole, 483 U.S. 203 (1987). However, that case only allowed the government to do so for reasons related to the “general welfare”. Helvering v. Davis, 301 U. S. 619, 640–41 (1937).
The question is whether Illinois getting rid of Gov. Blagojevich is related to the “general welfare.” Say what you will of the corrupt and profane Illinois governor, he has not yet been convicted of any crime. This probably isn’t an illegal bill of attainder since it’s punishing Illinois rather than Blagojevich himself, but it’s still a gross violation of the principle of federalism. The “general welfare” isn’t a way for Congress to advance narrow issues or play political hardball. It would be blatantly unconstitutional for Congress to condition federal funding on a state electing a Republican governor or electing a female governor. So why should it be constitutional for the federal government to withhold funds from Illinois because they refuse to impeach Blagojevich on Congress’ timetable.
Even though the courts generally defer to Congress on what is defined as being in the national interest, this seems to be a rather clear case of Congress overstepping their constitutional limits.
