August 7, 2009

The Bill of Federalism: Amendment #3

Carroll Andrew Morse

The third proposed amendment to the US Constitution contained in the Bill of Federalism places express limits on the Federal government's ability to use the extensive machinery of modern government to compel state governments to act in certain ways…

Congress shall not impose upon a State, or political subdivision thereof, any obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall Congress place any condition on the expenditure or receipt of appropriated funds requiring a State, or political subdivision thereof, to enact a law or regulation restricting the liberties of its citizens.
As Georgetown University Law Professor Randy Barnett explains, this amendment has two distinct purposes 1) disallowing unfunded mandates by the Federal government on the states and 2) disallowing the practice of threatening to withhold Federal tax money, in order to force states to do what the Federal government is unable or unwilling to do directly…
The third proposed amendment addresses two sources of persistent federal intrusion into the powers of states. The first is federal laws mandating state action necessitating the expenditure of state funds without reimbursing the states for their expenditures. In this manner, the federal government can take credit for adopting measures without incurring the political cost of increasing taxes or borrowing. The second problem is the use of federal spending to restrict liberty for purposes not delegated to the United States. For example, the 55 mph speed limit was imposed by the states by conditioning the receipt of federal highway funds upon compliance with this mandate. This amendment makes this type of condition on funding unconstitutional.
I wonder if this could also serve as a model for a state Constitutional amendment, prohibiting states from applying unfunded mandates to cities and towns…

Earlier Proposed Amendments:
Article II: Limiting Federal Powers under the Interstate Commerce Clause
Aritcle I: Reconstituting the Taxing Power of the Federal Government