South Dakota v. Dole (1987)
The Spending Clause of Article I, Section 8, of the U.S. Constitution grants Congress the power to “provide for the common Defence and general Welfare of the United States.” In 1987, the U.S. Supreme Court held in South Dakota v. Dole that the Spending Clause authorizes Congress to make even those conditional offers of funds to the states that, if accepted, would regulate the states in ways that Congress could not directly mandate. Thus, Dole’s significance today lies in its offer to Congress of a seemingly easy way to circumvent any restrictions the Constitution might impose on Congress’s ability to regulate the states directly: so long as the regulation takes the form of a conditional offer of federal funds to the states, the regulation will be found to be constitutional.
In Dole, the Court upheld a federal statute that directed the secretary of transportation to withhold a percentage of federal highway funds to which they were otherwise entitled from any state that had a drinking age of less than 21 years. The Court determined that Congress had “acted indirectly under its spending power to encourage uniformity in the States’ drinking ages,” and went on to hold the legislation “within constitutional bounds even if Congress may not regulate drinking ages directly” (emphasis added).
Observing that a state always has “the simple expedient” of not accepting an offer of federal funds that comes with conditions that it considers unattractive, the Dole Court concluded that the “Tenth Amendment limitation on congressional regulation of state affairs [does] not concomitantly limit the range of conditions legitimately placed on federal grants.” The Court went on to observe that the “spending power is of course not unlimited,” but none of the four stated restrictions on that power was portrayed as having much “bite.”
Thus, the first restriction articulated in Dole, that “the exercise of the spending power must be in pursuit of ‘the general welfare,’ ” was noted by the Court to be subject to the caveat that “courts should defer substantially to the judgment of Congress” when applying this standard. Indeed, the Court acknowledged that the required level of deference is so great that it has “questioned whether ‘general welfare’ is a judicially enforceable restriction at all.”
Second, the Court affirmed that Congress must state any conditions on the states’ receipt of federal funds “unambiguously,” enabling “the States to exercise their choice knowingly, cognizant of the consequences of their participation.” But the Court could cite only one instance in which it had found that an enactment did not meet this requirement.
Third, the Dole Court noted that “conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs,’ ” but added that this restriction was merely “suggested (without significant elaboration)” by prior cases. Indeed, the Court could cite no instance in which it had invalidated a conditional grant of federal money to the states on this ground.
Fourth, the Court concluded that “other constitutional provisions may provide an independent bar to the conditional grant of federal funds.” That is, Congress may not use its powers under the Spending Clause “to induce the States to engage in activities that would themselves be unconstitutional.” But, again, the Court could cite no case in which it had invalidated a conditional grant of federal money to the states on this basis.
In addition to these four restrictions, the Dole Court read the Spending Clause to impose limits on Congress’s ability to “coerce” the states in ways that it could not directly mandate under its other Article I powers. In some circumstances, the Court observed, “[T]he financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’ ” The Court concluded that a threatened loss to the states of 5 percent of their otherwise obtainable allotment of federal highway funds did not pass this critical point, but did not suggest what percentage of these (or any other funds) might.
Since its decision in 1987, the U.S. Supreme Court has not held any federal statute to be unconstitutional under the test set out in Dole.
Lynn A. Baker and Mitchell N. Berman, “Getting Off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So,” Indiana Law Journal 78 (2003): 459–541; and South Dakota v. Dole, 483 U.S. 203 (1987).