The Next Case Pro-lifers Must Overturn: South Dakota v. Dole

 

Dobbs is an enormous victory for both the pro-life and the federalist movements. The right to regulate abortion has been returned to the states in about as unequivocal language as possible. Even if opponents of the decision had the votes to pass a national abortion rights law, it would fail a Constitutional challenge. But there is a completely constitutional lever by which Congress could nominally respect the decision but still force abortion legalization throughout the country. That lever is a little-known case called South Dakota v. Dole.

(I should note that I worried about writing this post at all, for fear of informing our opponents about a powerful tool in their inventory that they probably don’t realize they have.)

South Dakota v. Dole comes from 1984 when Mothers Against Drunk Driving was at the height of its power. MADD had successfully lobbied Congress into passing the National Minimum Drinking Age Act, which required states to raise their minimum drinking age to 21 or lose 15% of their federal highway funding. Why was this method chosen? Because the 21st Amendment specifically forbids Congress from passing national laws regulating alcohol. States are perfectly able to, though.

The Court found that Congress’s spending authority gave it the right to attach conditions that required states to pass laws the federal government was prohibited from passing, so long as the pressure caused by the conditions wasn’t too coercive for Renquist’s conscience.

So imagine an “Abortion Rights Protection” bill that requires states to legalize elective abortion until the moment of crowning or lose 10% or 15% of their federal Medicaid funding. How many states could hold out? No matter how fervent, pro-life beliefs won’t balance a budget. Granted, such a law could be removed, or even reversed (criminalize abortion or lose a chunk of funding) by the next instance of Republican control of the presidency, Senate, and House, but this kind of switching back and forth is hardly a formula for good governance.

This decision must go. Congress must be forbidden from using its spending power to coerce states into passing laws that would be unconstitutional for Congress to pass. The Tenth Amendment, interpreted by a Supreme Court that recognizes that it even exists, should be enough, but if a case with a proper plaintiff cannot be made, Republicans should use their likely coming tsunami of state legislative control to get a Constitutional amendment passed. States’ rights mean nothing so long as this case is a controlling precedent.

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  1. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Agree. Isn’t this same approach used by the Bureaucracy through regulations. 

    • #1
  2. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Or should a Republican Congress use the power to promote life? Protect babies or lose 15% of your Medicaid funding? 

    One possible outcome to using federal government spending power to promote good rather than evil (other than states protecting life) is that leftists might begin to see that maybe control by the national government doesn’t always go their way, and so might stop pushing for the imperial government in Washington to micromanage everyone’s life. 

    • #2
  3. David C. Broussard Coolidge
    David C. Broussard
    @Dbroussa

    Not sure that would pass the Sebelius test, the one good thing out of that ruling.  In that opinion ChiefJusticeJohnRobertsHeWillNeverLetConservativesDown in saying that the mandate was a tax, also said that the gov’t could not threaten existing funding with conditions:

     As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.

    If the gov’t wanted to create NEW funding and attach conditions to it, they can do so, but it must offer a genuine offer.

    • #3
  4. Amy Schley, Longcat Shrinker Moderator
    Amy Schley, Longcat Shrinker
    @AmySchley

    Full Size Tabby (View Comment):

    Or should a Republican Congress use the power to promote life? Protect babies or lose 15% of your Medicaid funding?

    “It is a gift! A gift to the foes of Mordor!”

    I do not trust anyone, on any side of any issue, with this power. It undercuts the entire notion of federalism. 

    I’m willing to use it as a boogeyman to get leftist states on board, but to actually pass such laws? Let me point out that in Lewis’s famous quote here, no political parties are mentioned: 

    Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.

    • #4
  5. David Carroll Thatcher
    David Carroll
    @DavidCarroll

    Good post.  Scary because it is true.

    • #5
  6. Ole Summers Member
    Ole Summers
    @OleSummers

    This a simple tool of central government to mandate through the pocketbook with conditional money, regardless of how it might be used for “good” it will always be used to force behavior that the central power wants in place of what the rightful local authority would do on its own. Educational funds are an excellent example of this as well, withholding funds to get compliance that would not normally occur – such as multi-gender bathrooms which is in the works now.

    • #6
  7. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Ole Summers (View Comment):
    Educational funds are an excellent example of this as well, withholding funds to get compliance that would not normally occur – such as multi-gender bathrooms which is in the works now.

    This was used early-on to control the curriculum and certifications and this has led to much damage by teaching what to think, largely socialist based,  instead of how to think. 

    • #7
  8. Stad Coolidge
    Stad
    @Stad

    I’ve always been leery of Congress forcing states to do things or lose funding, especially after they made states raise the drinking age . . .

    • #8
  9. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Stad (View Comment):

    I’ve always been leery of Congress forcing states to do things or lose funding, especially after they made states raise the drinking age . . .

    It’s worse when Congress abdicates their explicit responsibility and delegates such authority to the federal bureaucracy. The effort by Senator Mike Lee to stop this from happening really has strengthened my support for him. My impression was that this also was high on the list of the types of regulations President Trump pursued for elimination.

    • #9
  10. Hoyacon Member
    Hoyacon
    @Hoyacon

    Bob Thompson (View Comment):

    Stad (View Comment):

    I’ve always been leery of Congress forcing states to do things or lose funding, especially after they made states raise the drinking age . . .

    It’s worse when Congress abdicates their explicit responsibility and delegates such authority to the federal bureaucracy. The effort by Senator Mike Lee to stop this from happening really has strengthened my support for him. My impression was that this also was high on the list of the types of regulations President Trump pursued for elimination.

    Let’s see what happens in West VA v EPA, the last big case in this term.  I have a good feeling.

     

     

    • #10
  11. Spin Coolidge
    Spin
    @Spin

    Oh you are back?

    • #11
  12. Amy Schley, Longcat Shrinker Moderator
    Amy Schley, Longcat Shrinker
    @AmySchley

    Spin (View Comment):

    Oh you are back?

    I’ve been around. I just rarely feel like I have anything to add, since I try to avoid news or discussions of the outrage de jour.

    • #12
  13. Allie Hahn Coolidge
    Allie Hahn
    @AllieHahn

    Interesting. I didn’t know about this case at all! (Not terribly surprising. 😅)

    • #13
  14. Spin Coolidge
    Spin
    @Spin

    Amy Schley, Longcat Shrinker (View Comment):

    Spin (View Comment):

    Oh you are back?

    I’ve been around. I just rarely feel like I have anything to add, since I try to avoid news or discussions of the outrage de jour.

    There’s always something that’s got someone angry.  

    • #14
  15. Hoyacon Member
    Hoyacon
    @Hoyacon

    I don’t like the ruling, but I don’t see it as much of a concern here.

    Borrowing from Wikipedia:

    ”The Court established a five-point rule for considering the constitutionality of expenditure cuts of this type:

    1. The spending must promote “the general welfare.”
    2. The condition must be unambiguous.
    3. The condition should relate “to the federal interest in particular national projects or programs.”
    4. The condition imposed on the states must not, in itself, be unconstitutional.
    5. The condition must not be coercive.”

    You could argue for 1-2, 3 is a stretch, and 4-5 no.

    • #15
  16. Amy Schley, Longcat Shrinker Moderator
    Amy Schley, Longcat Shrinker
    @AmySchley

    Hoyacon (View Comment):
    The condition imposed on the states must not, in itself, be unconstitutional.

    It’s not unconstitutional for the state to regulate abortion, just as it’s not for the state to regulate alcohol purchasing. If that aspect of the test meant “unconstitutional for the federal government,” then the National Minimum Drinking Age Act would have violated it too. So clearly, it has to refer to the constitutionality of the state passing such a law. 

    Hoyacon (View Comment):
    The condition must not be coercive.

    Renquist said 15% of highway funding the first year and 10% thereafter wasn’t coercive. That gives a guideline for how much the feds could cut spending before the more … call them precedent-minded justices … would cry foul. 

    (As a note: yes, Roberts is a huge disappointment to conservatives. But he didn’t replace a bastion of conservative principles either.)

     

    • #16
  17. Hoyacon Member
    Hoyacon
    @Hoyacon

    Amy Schley, Longcat Shrinker (View Comment):

    Hoyacon (View Comment):
    The condition imposed on the states must not, in itself, be unconstitutional.

    It’s not unconstitutional for the state to regulate abortion, just as it’s not for the state to regulate alcohol purchasing. If that aspect of the test meant “unconstitutional for the federal government,” then the National Minimum Drinking Age Act would have violated it too. So clearly, it has to refer to the constitutionality of the state passing such a law.

    The constitutionality of such an attempt would be litigated.  To the extent it would be an attempt to de facto restore the principles of Casey and Roe (which I see as the concern), it would be a loser on constitutional grounds.

    Hoya on (View Comment):
    The condition must not be coercive.

    Renquist said 15% of highway funding the first year and 10% thereafter wasn’t coercive. That gives a guideline for how much the feds could cut spending before the more … call them precedent-minded justices … would cry foul.

     I see the issues as very different.  Attempting to, in effect, reverse Dobbs is inherently more coercive than a decision about the drinking age for young people.  The absolute volume of dollars would seem to be greater as well.

    (As a note: yes, Roberts is a huge disappointment to conservatives. But he didn’t replace a bastion of conservative principles either.)

     

     

    • #17
  18. Lawst N. Thawt Coolidge
    Lawst N. Thawt
    @LawstNThawt

    There is something fundamentally wrong with the idea of one entity taking a second entity’s money, essentially by force, and then the one entity using the money to try and bribe the second entity into doing what the one entity wants. 

     

    • #18
  19. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    Amy Schley, Longcat Shrinker (View Comment):

    Spin (View Comment):

    Oh you are back?

    I’ve been around. I just rarely feel like I have anything to add, since I try to avoid news or discussions of the outrage de jour.

    Wise woman.

    • #19
  20. Stad Coolidge
    Stad
    @Stad

    Bob Thompson (View Comment):

    Stad (View Comment):

    I’ve always been leery of Congress forcing states to do things or lose funding, especially after they made states raise the drinking age . . .

    It’s worse when Congress abdicates their explicit responsibility and delegates such authority to the federal bureaucracy. The effort by Senator Mike Lee to stop this from happening really has strengthened my support for him. My impression was that this also was high on the list of the types of regulations President Trump pursued for elimination.

    Reagan was the one who used this method to raise the drinking age.  A pox on him for doing so . . .

    • #20
  21. I Walton Member
    I Walton
    @IWalton

    The problem, as almost always, is that the Feds get to use federal taxation to gather funds and use them to bribe and coerce states.  The problem is our tax code and Federal spending. States that want to do stuff should have to convince their residents.

    • #21
  22. DaveSchmidt Coolidge
    DaveSchmidt
    @DaveSchmidt

    Full Size Tabby (View Comment):

    Or should a Republican Congress use the power to promote life? Protect babies or lose 15% of your Medicaid funding?

    One possible outcome to using federal government spending power to promote good rather than evil (other than states protecting life) is that leftists might begin to see that maybe control by the national government doesn’t always go their way, and so might stop pushing for the imperial government in Washington to micromanage everyone’s life.

    One of my concerns is that many Federal employees will refuse to follow any legislation that they don’t approve of.  

    • #22
  23. Bob Thompson Member
    Bob Thompson
    @BobThompson

    DaveSchmidt (View Comment):

    Full Size Tabby (View Comment):

    Or should a Republican Congress use the power to promote life? Protect babies or lose 15% of your Medicaid funding?

    One possible outcome to using federal government spending power to promote good rather than evil (other than states protecting life) is that leftists might begin to see that maybe control by the national government doesn’t always go their way, and so might stop pushing for the imperial government in Washington to micromanage everyone’s life.

    One of my concerns is that many Federal employees will refuse to follow any legislation that they don’t approve of.

    Do you mean personally or that they would refuse to execute their job responsibilities in accordance with legislation? Most federal employees could not get away with the latter. The DoJ, including the FBI, the CIA and other intelligence agencies, and Homeland Security we know are exceptions because we have seen their use of security classification or ongoing investigation to avoid disclosing information to reveal misbehavior and the need to speak falsely while under oath.

    • #23
  24. kedavis Coolidge
    kedavis
    @kedavis

    Spin (View Comment):

    Oh you are back?

    In case you missed this recent Amy post:

    https://ricochet.com/1254150/my-first-mothers-day/

    • #24
  25. kedavis Coolidge
    kedavis
    @kedavis

    Gary Robbins (View Comment):

    Amy Schley, Longcat Shrinker (View Comment):

    Spin (View Comment):

    Oh you are back?

    I’ve been around. I just rarely feel like I have anything to add, since I try to avoid news or discussions of the outrage de jour.

    Wise woman.

    She has more important things to do.

    https://ricochet.com/1254150/my-first-mothers-day/

    • #25
  26. DaveSchmidt Coolidge
    DaveSchmidt
    @DaveSchmidt

    Bob Thompson (View Comment):

    DaveSchmidt (View Comment):

    Full Size Tabby (View Comment):

    Or should a Republican Congress use the power to promote life? Protect babies or lose 15% of your Medicaid funding?

    One possible outcome to using federal government spending power to promote good rather than evil (other than states protecting life) is that leftists might begin to see that maybe control by the national government doesn’t always go their way, and so might stop pushing for the imperial government in Washington to micromanage everyone’s life.

    One of my concerns is that many Federal employees will refuse to follow any legislation that they don’t approve of.

    Do you mean personally or that they would refuse to execute their job responsibilities in accordance with legislation? Most federal employees could not get away with the latter. The DoJ, including the FBI, the CIA and other intelligence agencies, and Homeland Security we know are exceptions because we have seen their use of security classification or ongoing investigation to avoid disclosing information to reveal misbehavior and the need to speak falsely while under oath.

    Selective execution of the law. 

    • #26
  27. Cassandro Coolidge
    Cassandro
    @Flicker

    Lawst N. Thawt (View Comment):

    There is something fundamentally wrong with the idea of one entity taking a second entity’s money, essentially by force, and then the one entity using the money to try and bribe the second entity into doing what the one entity wants.

    Yes, but that’s what federal income tax does alright.

    • #27
  28. Southern Pessimist Member
    Southern Pessimist
    @SouthernPessimist

    I am not a lawyer and don’t even want to play on on TV but I think Amy’s conjecture sounds persuasive to me. The best thing about the last few SCOTUS decisions is that the current court has emphasized the essential role of federalism in our constitution. The spending power of the federal government is enormous but many of the states that opposed the expansion of medicaid to accomodate obamacare are the same states that oppose unlimited abortion. John Robert’s acquiescence of that mandate/tax logic supports Amy’s hypothesis. We live in interesting times.

    • #28
  29. Muleskinner, Weasel Wrangler Member
    Muleskinner, Weasel Wrangler
    @Muleskinner

    Amy Schley, Longcat Shrinker: This decision must go. Congress must be forbidden from using its spending power to coerce states into passing laws that would be unconstitutional for Congress to pass.

    Another reason to repeal the 17th Amendment, along with the unfunded federal mandate. 

    • #29
  30. Percival Thatcher
    Percival
    @Percival

    Southern Pessimist (View Comment):

    I am not a lawyer and don’t even want to play on on TV but I think Amy’s conjecture sounds persuasive to me. The best thing about the last few SCOTUS decisions is that the current court has emphasized the essential role of federalism in our constitution. The spending power of the federal government is enormous but many of the states that opposed the expansion of medicaid to accomodate obamacare are the same states that oppose unlimited abortion. John Robert’s acquiescence of that mandate/tax logic supports Amy’s hypothesis. We live in interesting times.

    Amy’s smart and she knows lawyer stuff.

    • #30
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