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Wednesday, April 08, 2009

Stimulus Blogging: A Cameo

Greetings again to Prawfs readers.  I'm here as unofficial guest-blogger to say a few words about the recent efforts by (republican) governors to turn away some of the money marked for states in the recent stimulus legislation.  The act has the euphonious acronym "ARRA," for reasons you don't really want to know.  (Possibly they wanted to conjure subliminal images of Meryl Streep singing and dancing.) 

So, ARRA provides a number of grant programs for states.  The big-ticket items are education funding and extra money for unemployment insurance.  Both streams of money come with some strings attached.  In the case of education, states have to promise to make a number of reforms,with some more detail on those reforms yet to be spelled out by Arne Duncan and the kids at the DOE.  The unemployment insurance pool requires states to agree to expand eligibility for unemployment benefits, including allowing workers whose last job was only part-time to claim benefits (this is already the law in some states, but not all). 

Like most conditional grant programs, the money and strings are optional; the legislation says that money can only start flowing if the governor of the state "certifies" that he will accept the money.  And then the two big grant programs both require some kind of application from the state.  As you might have heard, various republican presidential hopefuls/current governors have made noises about either not filing the certification or not submitting an application.  At this point, it looks as though everyone will certify, but some will not apply.  So after all that effort to pass the thing, some of the money won't go anywhere.

But...ARRA allows state legislatures to certify when the governor won't.  Maybe this provision applies to the application process, too.  But the Congressional Research Service, among others, thinks that provision is maybe unconstitutional.  Will states get their money, or will Sarah, Haley, Rick, and Bobby get the last word?  Stay tuned for my next post. 

Posted by BDG on April 8, 2009 at 07:29 PM in Constitutional thoughts, Current Affairs | Permalink


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Ok. Help me here: why is the provision allowing the state legislature to ask for/accept the $ unconstitutional? I've read the linked opinion letter and I'm as confused as before I started. There is one paragraph in there about the 10th Amendment, but it is a very opaque passage making a very odd argument. I don't think the federal Constitution assumes or requires any particular structure for state governments (save the Guarantee Clause, of course). It may be that the Constitutions of many states set up structures that prohibit their legislatures from taking certain actions that intrude on the powers of their executive branches or addministrative agencies, but--if so--don't potential violations of such provisions pose issues of state constitutional law best addressed by state courts?

Posted by: Andrew Siegel | Apr 9, 2009 11:17:22 AM

Hi, Matt. That's my reading, too, but of course whether that means it's "right" remains to be seen.

Posted by: BDG | Apr 9, 2009 9:11:28 AM

Brian -- thanks for blogging on this timely and very complicated topic. I've been reviewing the unemployment provisions for my employment law class, and it was my impression that there are several levels of options to get different pools of money. There's that first "certification" level, which simply requires a certification that the money will be spent as allocated. Apparently this entitles the state to additional funding. Then, to get an additional tranche of extended unemployment benefits for its workers, the state needs to change its unemployment rate "trigger" to make its unemployment rate reach a higher threshhold. Finally, states that expand the pool of workers entitled to unemployment insurance (to include part-time workers and others) will be entitled to even more federal cash.

My understanding is that even though all 50 states have done that certification process, many have not changed their trigger and even fewer have expanded their pools to include part-time workers, etc. Am I reading this the right way?

Posted by: Matt Bodie | Apr 9, 2009 1:22:59 AM

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