John Eastman, a dedicated originalist (albeit one with whom I often disagree) points out a brief he filed today on behalf of the Pacific Legal Foundation and the Center for Constitutional Jurisprudence:
In the brief filed this morning, we urge the Supreme Court to go further [than the courts of appeal have gone], striking down not just the individual mandate [of the Affordable Care Act] but the massive expansion in federal spending as well. … [W]e point out that our nation's Founders never intended to give Congress an unfettered spending power. James Madison thought the federal tax and spend power was limited by the other powers delegated to the national government, and Alexander Hamilton thought that spending could only be on issues of national concern, not for local or state matters such as health care.
Here is Timothy Sandefur’s description of the brief, at the Pacific Legal Foundation website:
This brief, authored by Chapman University law professor John Eastman, differs from the many others PLF has filed, in that it asks the Court to consider the issues raised under the “Spending Clause” of the Constitution, in addition to the many other constitutional issues raised by these cases. That’s the clause that allows the federal government to “pay the Debts and provide for the common Defence and general Welfare of the United States.” Unfortunately, what often happens is that Congress collects taxes from the nation, and then tells states that they can get that money back, in the form of grants or other favors, only if the state agrees to certain conditions—conditions that often end up abridging state autonomy and expanding federal power. Of course, if the state refuses, it still loses the money. So it’s a heads-I-win, tails-you-lose kind of proposition.
In South Dakota v. Dole, the Supreme Court rejected a state’s challenge to the constitutionality of a federal highway funding program that required the state to change its drinking age. The Court said this was okay, because if the state didn’t like the condition, it was free to refuse the money. But what about the fact that the state still loses the money if it refuses? And what about the many other cases where the money involved isn’t—as in the Dole case—a relatively small amount, but—as in the case of Medicare—a large fraction of the state’s entire budget? “In some circumstances,” the Court admitted, “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.” If that was ever true, it is true here. Yet the Eleventh Circuit rejected the argument of Florida and the other states that the federal government went too far here. Even so, as the PLF/Claremont brief observes, the real focus in these questions should be less on the amount of money involved, than on whether the federal government is using the spending power to get around the constitutional limits on its powers. We hope the Supreme Court will take up not just the question of the Individual Mandate, but also the questions raised under the Spending Clause.
Professor Eastman also has a longer article on the spending clause from a while back. Here is the abstract:
This article examines the original understanding of the Constitution's Spending Clause (giving Congress the power to tax for the common defense and general welfare) and the competing interpretations of it offered by Alexander Hamilton, on the one hand, and James Madison and Thomas Jefferson, on the other. Madison contended that the Clause's reference to the general welfare was just short-hand for the powers granted elsewhere in Article I, Section 8 of the Constitution, while Hamilton viewed the clause as a stand-alone grant of power. Even Hamilton, though, believed that the power had limits - spending had to be for the general, or national, welfare and not for the welfare of a single state or locale. The article then traces the historical disputes about the constitutionality of internal improvements, from the watershed election of 1800, through presidential veto messages all the way to the eve of the civil war, and finally to the Supreme Court's New Deal-era decision in United States v. Butler, concluding that the blank check interpretation given to the clause since Butler simply cannot be squared with the original understanding of either Hamilton or Madison.
In a different context, I suggested some preliminary thoughts on the spending clause here, which are not necessarily inconsistent with Eastman’s position.