"Wanna build that cloverleaf on I-25? Then push light rail."

From Volokh Conspiracy:

The Supreme Court, though, has long (and correctly) recognized that the government does not have a free hand to impose conditions on grants of benefits. When the government controls 25-30% of the GNP, and has vast regulatory power over the economy, imagine what it could do using conditions. "Want a tax refund? Promise not to spend in on anti-government activity." "Want to buy a chunk of federally owned land to build a home? Promise to let us search your house whenever we like, without any excuse."
"Want a corporate charter? Promise not to criticize the government."

If this is the jurisprudence, then, how can the Federal government Constitutionally attach conditions on the grants of benefits to States? In particular, how can the Feds withhold highway funding from States that prefer not to lower their blood alcohol content threshold for DUI? "Wanna build that cloverleaf on I-25? Then push light rail." What gives corporations preference (other than, perhaps, the position of the
corporation as an individual compared to a State)?

In this case the term "benefit" is not even appropriate; the monies to which the Federal strings are attached should represent, for the most part, return of monies taxed from the citizens of that State in the first place, if not in this year's budget, then from last year's or next year's. There should be no net gain or loss over time between taxes taken from the State and Federal expenditures returning to it.

The usual rebuttal that "who pays the fiddler calls the tune" rings hollow. Granted, the quote above comes from a post about the rights of corporations, but I would assert that States have an even broader right to operate than corporations---States are not considered creatures of the Federal government, they are precursors to it who consented to its creation. The Ninth and Tenth Amendments guarantee that States will have a free hand in governing within their spheres, on the condition that individual rights are protected and the Federal government is held supreme in the enumerated areas given to it to govern.

Note, this is probably the only time WUTT! has ever, or will ever, discuss States' rights per se. I'm a States' powers kind of guy---islands of government power surrounded by a sea of individual rights and all that. But for a State to exercise those powers granted to it, it must have some right to operate without interference from other governments.


Woo-hoo! The VC post just below this one has more.