Clyburn Amendment Constitutional

MEMORANDUM

DATE: March 30, 2009

TO: Reporters, Editorial writers

FROM: Kristie Greco, Communications Director, Office of the Majority Whip

RE: Constitutionality of the “Clyburn workaround amendment”

Although much of the debate over accepting federal economic recovery dollars seems to be political in nature, I wanted to provide some facts regarding the constitutionality of the so-called “Clyburn workaround provision,” also known as section 1607 of the American Recovery and Reinvestment Act.

Senator Lindsey Graham made news a few weeks ago by releasing a memo he asked the Congressional Research Service to produce analyzing the language contained in section 1607. In Senator Graham’s opinion, the provision raised states rights issues with the Tenth Amendment of the U.S. Constitution. However, CRS concluded that his interpretation was very broad, in fact one that is “disfavored;” the more likely interpretation did not violate the Tenth Amendment. This conclusion is restated in a new report produced by CRS on March 25, 2009 (report available upon request).

Finally, it’s irrelevant how CRS, Sen. Graham, Rep. Clyburn or South Carolina Attorney General Henry McMaster interprets the impact of a federal law on the U.S. Constitution. The constitutionality of a law is determined in a court of competent jurisdiction.

For further background and assistance I have attached the language of Section 1607 and the Summary from the 3/25/09 CRS Report. Let me know if you have further questions.

AMENDMENT LANGUAGE

The American Recovery and Reinvestment Act included a provision which allows State Legislatures by concurrent resolution to draw down federal funding if the governor does not act on the funding within 45 days. The legislative language states:

SEC. 1607. ADDITIONAL FUNDING DISTRIBUTION AND ASSURANCE OF APPROPRIATE USE OF FUNDS.

(a) Certification by Governor- Not later than 45 days after the date of enactment of this Act, for funds provided to any State or agency thereof, the Governor of the State shall certify that:

(i) the State will request and use funds provided by the Act; and

(ii) the funds will be used to create jobs and promote economic growth.

(b) Acceptance by State Legislature- If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.

(c) Distribution- After the adoption of a State legislature’s concurrent resolution, funding to the State will be for distribution to local governments, councils of government, public entities, and public-private entities within the State either by formula or at the State’s discretion.

CRS REPORT: SECT 1607 DOES NOT VIOLATE CONSTITUTION

This report analyzes the language contained in §1607 of the American Recovery and

Reinvestment Act of 2009 (Recovery Act), which provides that federal funds can be made available to a state by the federal government either after certification by a governor that such money will be requested and spent or after the adoption of a concurrent resolution by a state legislature.

Although the language of § 1607 is arguably ambiguous, it does not appear likely that it would have the effect of significantly reallocating power between a state legislature and a state executive branch. Thus, once either a governor’s certification or the legislature’s acceptance has been made, § 1607 would have little or no apparent effect on the power of a governor, state or local official to choose whether or not to seek and administer these funds.

Any interpretation of this language which did provide authority to a state legislature, by concurrent resolution, to direct the acceptance and spending of federal monies by state or local officials, would be likely to raise Tenth Amendment issues. Consequently, such an interpretation would be disfavored.

Read the full story and memo here.