Article 1, Section 8, Clause 1 — Modern Spending Clause Jurisprudence Generally

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Article I, Section 8, Clause 1:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; . . .

The Supreme Court’s early Spending Clause case law culminated, in 1937, with an embrace of a relatively expansive view of Congress’s power to tax and spend in aid of the general welfare. That same expansive view permeates the Court’s modern Spending Clause case law. The Court has repeatedly stated that, by allocating federal funds and attaching conditions to those funds,[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-spending-clause-jurisprudence-generally#fn1art1 " The Court has stated that Congress’s authority to attach conditions to federal funds derives, in part, from the Necessary and Proper Clause. See Sabri v. United States, 541 U.S. 600, 605 (2004); see also . ") Congress may pursue broad policy objectives.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-spending-clause-jurisprudence-generally#fn2art1 " Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1568 (2022); Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006); South Dakota v. Dole, 483 U.S. 203, 206–07 (1987); Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (opinion of Burger, C.J.). ") Congress may even achieve policy outcomes that it could not directly legislate using its other enumerated powers.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-spending-clause-jurisprudence-generally#fn3art1 " Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999); Oklahoma v. U.S. Civ. Serv. Comm’n, 330 U.S. 127, 143 (1947). ")

Much of the Court’s modern Spending Clause jurisprudence has focused on what the Court has termed “restrictions” [4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-spending-clause-jurisprudence-generally#fn4art1 " Dole, 483 U.S. at 207. ") or “limits” [5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-spending-clause-jurisprudence-generally#fn5art1 " Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 n.13 (1981). ") on the spending power. The Court today judges the constitutional validity of federal spending using five factors. First, Congress must unambiguously identify conditions attached to federal funds. Second, Congress must refrain from offers of funds that coerce acceptance of funding conditions. Third, spending must be in pursuit of the general welfare. Fourth, conditions on federal funds must relate to the federal interest in a program. Finally, a funding condition may not induce conduct on the part of the funds recipient that is itself unconstitutional.

Footnotes

1

The Court has stated that Congress’s authority to attach conditions to federal funds derives, in part, from the Necessary and Proper Clause. See Sabri v. United States, 541 U.S. 600 , 605 (2004); see also .

2

Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1568 (2022); Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 , 213 (2013); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 , 296 (2006); South Dakota v. Dole, 483 U.S. 203 , 206–07 (1987); Fullilove v. Klutznick, 448 U.S. 448 , 474 (1980) (opinion of Burger, C.J.).

3

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 , 686 (1999); Oklahoma v. U.S. Civ. Serv. Comm’n, 330 U.S. 127 , 143 (1947).

4

Dole, 483 U.S. at 207.

5

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 , 17 n.13 (1981).