Page images

States or local governments engage in additional or expanded activities without compensation equal to the necessary additional costs.

In addition to reducing the share of grants to the States, the Federal gove mment may add to the total burden through legislation, the compliance with which necessitates expanded state or local government activities. This section' seeks to protect against this increased burden by requiring Federal funding of these expanded activities. The associated Federal outlays would be within the Federal limit.

Within the Constitutional structure of relationships among U. S. gove mments, the Federal latitude to mandate state performance directly is constrained narrowly. In consequence, the history of Federal-State relations has been characterized by legislation under which the States must comply with Federal standards if Federal grants are to be received. To the extent the standards are relevant to the stated objectives of the grant program and the grant is commensurate with the costs of compliance, no issue arises under this


By contrast, a Federal determination that ramps at crosswalks would aid the mobility of the handicapped might lead to a further determination that the States should construct such ramps at all existing crosswalks. A conditioning of the receipt of future highway funds upon this construction would be irrelevant to new highway construction. Under this section, either the Federal condition would be withdrawn or the States would receive adequate compensation for the additional costs involved.

The reference to "directly and indirectly" is intended to embrace both the limited mandate latitude and the more general conditioning of grants. As with grants, this section is intended to be interpreted liberally, such that any doubt as to its application would be resolved in favor of Federal funding

of additional costs.

Transfers of Federal funds to the States pursuant to Section 5, above,

are not "grants" within the meaning of this section.

Constitutional change is not retroactive. Accordingly, this section is intended to apply only to legislation and administrative rule changes which occur after ratification of the Amendment by the States. Activities pursuant to legislation enacted prior to ratification will not require Federal compensation. To the extent such compensation is being provided by the Congress in the three years prior to ratification, the amount of this compensation is not to be treated as a "grant" within the meaning of Section 5, above. However, there can be no reduction in these dollars without a commensurate reduction

in the conditions imposed upon the States.

Section 7.

This article shall apply to the first fiscal year beginning after
the date of its ratification and to each succeeding fiscal year.

This section merely clarifies the effective date of application of the Amendment.

The only issue highlighted thereby is to suggest, by implication, that

the Congress institute budgeting procedures which would permit ready conformity to the Federal Spending Limitation upon ratification. Thus, the Congress may wish to adopt the language of the Amendment or an immediately effective

statute in conjunction with submission of the Amendment itself to the states

for ratification.

Section 8.

The Congress shall have power to enforce this article by appropriate legislation.

In recent years this language has come to be incorporated into amend

ments submitted to the states for ratification.

Ordinarily, no issue would be raised thereby. However, "standing" to pursue action in Federal courts is a continuing legal problem. Should it choose to do so, and future Congress could so restrict standing that no individual or group of individuals could initiate an enforcement action.

Unlike "excessive bail" or "excessive fines" which involve protecting the rights of specific individuals, standing to enforce, for example, the publication of a "regular statement and account of receipts and expenditures of all public money" (Art. I, Sec. 9(7)) remains unclear. No single individual may be able to show a severable and definable interest in such

5 publication. In the absence of this section, enforcement of this Amendment

may pose similar problems.

Sensitive to this prospect, the Federal Amendment Drafting Committee incorporates language in its proposal to the effect that:

This article may be enforced by one or more members of the
Congress in an action brought in the United States District
Court for the District of Columbia, and by no other persons.
The action shall name as defendant the Treasurer of the United
States, who shall have authority over outlays by any unit or
agency of the Government of the United States when required by
a court order enforcing the provisions of this article. The
order of the court shall not specify the particular outlays
necessary to be made or reduced. Changes in outlays necessary
to comply with the order of the court shall be made no later
than the end of the third full fiscal year following the court order.

Equally sensitive to the possibility that open standing could lead to a proliferation of actions beyond all reason, the Drafting Committee language restricts standing to the members of Congress. Restriction of the actions to the District of Columbia is intended to develop within one court

a consistent set of decisions with respect to this Amendment.

Because the Treasurer of the United States is the individual responsible for the issuance of the checks by which outlay claims are satisfied, the Treasurer is identified as defendant. The Treasurer's role in this setting differs little from the Treasurer's responsibility vis-a-vis the

"debt limit".

Nothing in this alternative language is intended to preclude the Congress from establishing the outlay priorities to be observed by the Treasurer in complying with an order of the Court, either in anticipation of or immediately following such order. Indeed, it is the anticipation of the Drafting Committee that the Congress would exercise its full authority in the face of anticipated outlay reductions.

5. ... that such conduct invades or will invade a private substantive
legally protected interest of plaintiff citizen."
Cf., "Standing to Sue Doctrine", Black's Law Dictionary (1968).

To remove and to relieve the Court of either power or necessity to judge specific outlays, the order of the Court would deal only with computation of the Limit, or with total outlays, or with compensation

claims under Section 6, etc.

Following a court order involving total outlays which have exceeded the outlay Limit, the section provides a three-year period during which outlays of those years may be reduced in a total amount equal to the excess of outlays in prior years.

The Drafting Committee intends that the Limit for all future fiscal years following an enforcement order be unaffected by the terms of the

order. That is, any reduction in outlays necessitated by an order shall be treated as if those outlays had taken place for the purposes of com

puting the Limit for the next year. If no reduction is necessitated, because the Congress had not intended outlays to be "at limit", then the

order is to have no effect on the Limit for the next year.

Constitutional Justifications.

As drafted, the proposed Federal Spending Limitation Amendment is an appropriate response to the explicit and quasi-Constitutional changes which have taken place in this century. Adoption of the Sixteenth Amendment in

1913 removed from the Constitution the severe restraint on Federal revenue

provided by the Founding Fathers. Even as it was being ratified, there was little appreciation of the tax burdens which would come to characterize American life scarcely 50 years later. Seers of the time who prophesied tax rates in excess of twenty percent were hooted into silence.

As a quasi-Constitutional change, the now characteristic range of Federal responsibility has widened and deepened beyond the imagination of

« EelmineJätka »