Congress’s spending power allows the federal government to spend money to provide for the general welfare of the United States. While this “general welfare” language was initially understood as barring Congress from apportioning money for local purposes, the Supreme Court’s interpretation of the spending power has treated this limitation as effectively nonjusticiable. Consequently, the spending power has provided Congress with an attractive carrot to coax states into enacting regulations that Congress could not achieve through its other powers.
This Note challenges the notion that the general welfare limitation of the Spending Clause should be considered nonjusticiable. Instead, it calls for a return to the original understanding that the spending power could not be exercised to promote purely local purposes, an understanding that the Court adopted in its earlier spending cases. Relying on principles of collective action federalism and the “substantial effects” test from United States v. Lopez, this Note proposes distinguishing between general and local spending by looking at the anticipated effects of the spending beyond the recipient of the funds itself.
Elizabeth L. Brown, A Prohibition on Purely Local Purposes: The “General Welfare” Limitation of Congress’s Spending Power, 71 Duke L.J. 1105-1138 (2022)
Available at: https://scholarship.law.duke.edu/dlj/vol71/iss5/3