Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/43

Rh … are ‘secured’ (if at all) not by any ‘law,’ but only by the contract between the recipient and the United States.” Ibid.

This contractual understanding of conditional spending legislation is much more than a mere analogy; it is the only possible explanation for why such legislation is not an unconstitutional direct regulation of the States. To deny or downplay this principle is to seek to have it both ways. Much spending legislation conditions States’ receipt of federal funds on their undertaking obligations with respect to third parties. For such legislation to survive a federalism challenge, it must not directly impose obligations on the States with the force of federal law. But, for those conditions to be enforceable under §1983, they must secure third-party rights by directly imposing correlative obligations on the States with the force of federal law. Both of these things cannot be true.

This contractual understanding of spending conditions is also a necessary consequence of the limited nature of Congress’ spending power, as consistently understood for nearly two centuries of our Nation’s history. Indeed, this is one point on which the Framers all seem to have agreed. Despite heated debates over the source and scope of Congress’ power to spend, all understood that this power did not carry with it any independent regulatory authority. That agreement persisted throughout the 19th century. And, in the 20th, it was a critical underpinning of this Court’s precedents upholding expansive uses of the spending power as consistent with Congress’ limited legislative powers and our federalist system of government.