Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/62

30 nor could they “supervise or control the application of the payments.” Ibid.

The Court again demonstrated its adherence to the traditional view in Oklahoma v. ''Civil Serv. Comm’n'', 330 U. S. 127 (1947). There, the U. S. Civil Service Commission determined that an Oklahoma highway commissioner had violated the Hatch Act, pledging to withhold a portion of the State’s highway grants equal to two years’ of the commissioner’s compensation if the State failed to remove him. Oklahoma challenged the Commission’s order and the Act on which it was based as an illicit attempt to regulate the State’s internal affairs. Id., at 133. Citing Mellon, the Court held that the Act was valid because it did not directly regulate the State, which had “adopted the ‘simple expedient’ of not yielding” by refusing to remove its highway commissioner. 330 U. S., at 143.

Thus, to defend these spending programs in the first half of the 20th century, the Government relied on the long-settled understanding that the power to spend carries with it no sovereign legislative power to create rights and duties. To the contrary, the Government represented that these programs had the binding force, at most, of contracts. They did not pre-empt, nor did they bind States with the force of law; they merely spent federal dollars upon conditions, the violation of which entitled the Government to cease further payments. The Court took this position as a given, and the contractual nature of spending conditions is precisely what saved them from constitutional challenge.

In sum, the historical record is clear and consistent on a critical proposition: The spending power is the power to spend only. Any duties imposed by regulatory legislation, and any correlative rights secured by law, must find their