Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/39

Rh from taking effect by rejecting a State’s application to participate in the spending program, and it can terminate their effect by cutting off a State’s participation for noncompliance with the conditions. In addition, States can opt out of spending programs, completely nullifying whatever force the spending conditions once had. This alone suggests that spending conditions do not operate with the force of federal law, as “Congress’ legislative powers cannot be avoided by simply opting out.” D. Engdahl, The Contract Thesis of the Federal Spending Power, 52 S. D. L. Rev. 496, 498 (2007) (emphasis deleted); see also Townsend v. Swank, 404 U. S. 282, 292 (1971) (Burger, C. J., concurring in result) (“[A]dherence to the provisions of [spending statutes] is in no way mandatory upon the States under the Supremacy Clause”).

Indeed, spending conditions like those in FNHRA do not function as laws enacted under Congress’ regulatory powers, and, if they did, they would unconstitutionally commandeer the States to administer federal programs ranging from welfare, to healthcare, to air quality, and much more. Such conditions are thus constitutional, if at all, only if understood as setting forth the terms of a federal-state contract, rather than as binding federal law imposing legally enforceable obligations of its own force. In holding that FNHRA secures rights by federal law, the majority ignores the contractual understanding of spending conditions and, by doing so, calls their very constitutionality into question.

As noted earlier, a defining characteristic of modern spending legislation is the imposition of obligations on States that accept federal funds. Understanding a State’s breach of such obligations as akin to violating rights secured by federal law is incompatible with this Court’s anticommandeering doctrine. Under this bedrock constitutional principle, Congress generally cannot directly