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Now it's interesting, and maybe Orrick is hoping nobody will learn this, but Title 23 U.S.C. § 158 established that the federal government could lawfully withhold highway funds from states that did not comply with a uniform minimum age for alcohol consumption that was set by the feds at age 21. This came about in an effort to combat drunk driving and was enacted by Congress in 1984 as a way of ensuring compliance. It is a federal statute. Title 23, Section 158 says:
The Secretary shall withhold 10 per centum of the amount required to be apportioned to any State under each of sections 104(b)(1), 104(b)(3), and 104(b)(4) [1] of this title on the first day of each fiscal year after the second fiscal year beginning after September 30, 1985, in which the purchase or public possession in such State of any alcoholic beverage by a person who is less than twenty-one years of age is lawful.
At least one state did not comply and took the matter to the Supreme Court in 1987 with South Dakota v. Dole. South Dakota lost ... //
Held: Even if Congress, in view of the Twenty-first Amendment, might lack the power to impose directly a national minimum drinking age (a question not decided here), § 158's indirect encouragement of state action to obtain uniformity in the States' drinking ages is a valid use of the spending power.
(a) Incident to the spending power, Congress may attach conditions on the receipt of federal funds. However, exercise of the power is subject to certain restrictions, including that it must be in pursuit of "the general welfare." Section 158 is consistent with such restriction //
Watt
33 minutes ago
Background documents:
The court order: https://storage.courtlistener.com/recap/gov.uscourts.cand.444175/gov.uscourts.cand.444175.111.0_1.pdf
To the point: Sorry, this post is messed up in several respects, including as follows:
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The federal courts, including the Supreme Court, review cases and controversies (Art. III), not "general trends".
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South Dakota v Dole is presented superficially here. First, the case addressed a federal statute that itself placed a condition on further federal finding to the states. The present situation involves an EO that threatens to cut off federal funding. That's different enough such that South Dakota wouldn't apply.
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Second, South Dakota presumed that the statute would define the conditions. Here, the EO threatens to cut off funding after the fact.
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Third, South Dakota set forth factors for when a statute can constitutionally place conditions on federal funding. One of these is that the conditions not be coercive. Arguably, the EO is "coercive."
Although I'm not sure whether case law after South Dakota has has covered this permutation, it would seem that the condition placed on funding should relate to the goal of the funding. In South Dakota, the funding was for interstate highway construction. The condition for full funding was that the state statutes had to set their drinking are at 21 (to help reduce drunk driving). So, could Congress constitutionally enact a statute that withheld all federal funding from a jurisdiction not compliant with immigration law? Or perhaps just all federal law enforcement-related funding?
In any event, South Dakota doesn't support the EO at issue.
mopani Watt
3 minutes ago
Excellent summary review; I agree.
However, the present state of affairs is intolerable. Since Congress did not specify enforcement mechanism to cover this eventuality, I think this is the right way to start down the path. If Congress decides the solution decided by the Courts and precedent is satisfactory, then it was a useful exercise. If Congress (and by extension, their constituents) does not like the precedent, then they have reason to amend the law, and data on which to base the change.
This is the sort of discussion that I wish Trump would engage in, explaining the theory, method, and desired end result. It would win loyalty from supporters, might convert detractors, and would help defuse some animosity (maybe?).
CheeseState
27 minutes ago
The precedence is in regards to a Law passed by Congress and not an EO by a single person (POTUS). So the principle may be the same but there is a difference between Congress tying the two together and POTUS tying Congressionally approved funds to an EO he created. //
mopani CheeseState
16 minutes ago edited
I think you are right in part, but the nuance is that Trump's EO is about enforcing existing law.
Even if Congress didn't write this enforcement action into explicit law, do we want to agree that the precedent is set that any law without explicit enforcement penalties are unenforceable? I'm of two minds about that; generally, I would say, yes, let the elected officials debate and write penalties into the laws they write.
On the other hand, do all the existing laws suddenly become unenforceable because they didn't have explicit penalties written in? What about all the creative resistance mechanisms that opponents of laws always find?
I think we have to give the Executive flexibility to enforce laws passed by Congress to deal with ingenious disobedience, and we need the courts to debate the methods to come to a consensus and create precedent. It takes time, and that's good even if it gets frustrating.
The whole process is analogous to the Scientific Method:
- Thesis
- Anti-thesis
- Synthesis
- Consensus
Sometimes it takes decades to get all four steps hammered out because it takes decades to build a Large Hadron Collider to test the first two.
The legal process is similar, but usually takes less than a decade. It should be slow. We don't want government running at warp 9.
