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Stimulus plan ties the hands of reluctant governors

With Vice President Joseph Biden looking on, President Obama signing the stimulus package bill at the Denver Museum of Nature and Science on Tuesday.
REUTERS/Larry Downing
With Vice President Joseph Biden looking on, President Obama signs the stimulus package bill at the Denver Museum of Nature and Science on Tuesday.

WASHINGTON, D.C. — Hidden in President Obama's massive economic stimulus plan is an unprecedented — but little noticed — provision aimed at keeping Republican governors like Minnesota's Tim Pawlenty from standing in the way of the $787 billion spending package.

The measure in the legislation, signed into law by Obama on Tuesday, could represent a significant federal intrusion into state government, according to political scholars, and has prompted worries by states' rights advocates.


Occupying only three paragraphs in legislation that spans more than 1,000 pages, the new law clears the way for an end-run around reluctant governors by requiring governors to accept the federal stimulus funds within 45 days. If the money is not accepted within that time frame, it is passed to the state legislature for certification and release to the state.

"What is unusual about this is that Congress has created a failsafe if the governor decides not to spend the money and the legislature supports it," said Larry Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota.

David Quam, federal relations director of the National Governors Association, said that the provision could potentially be a "big problem." Creating a legal mechanism to get around governors who oppose the spending "flies in the face of the state constitution and the way that money is supposed to be distributed," he said.

Pietro Nivola, a senior fellow at Brookings Institution, a liberal-leaning research organization, described the law as "basically nationalizing state authority."

"Something like this is definitely a massive encroachment into state rights," Nivola said. "It is one thing to say you don't get the money if you don't certify it within 45 days, but it is quite another to sort of force the governor's hand."

Governors targeted
Jacobs said that he had never seen a similar situation that dealt with this amount of money and "this kind of audacity of the federal government to say, 'We are not entirely trusting you [the governor]. If you are going to sit on this money, given the crisis we are in, then we are basically going to give you a fiscal time out.'
 
"It is very striking that the package looks to be targeted in very specific ways to handcuff people like Governor Pawlenty," Jacobs added.

Although a handful of Republican governors came out in open, and even active, support of the recovery package that sailed through the House and Senate last week, not all of the nation's 22 GOP governors have been so jubilant.

Pawlenty, along with South Carolina's Mark Sanford, Louisiana's Bobby Jindal, Mississippi's Haley Barbour and Alaska's Sarah Palin have all expressed deep concerns with the spending in the stimulus. Some have even threatened inaction.

The possibility of a block at the state level, ultimately prompted Congress to insert the 45-day provision, according to Rep. James Clyburn, D-S.C.

Clyburn publicly thanked the Congressional Black Caucus last week for the "efforts they put forth in making sure we got language in this bill that would allow communities we represent to claim the monies being funded where there may be a recalcitrant governor whose political philosophies may render him or her unable or unwilling to accept this money on behalf of our communities."

Minnesota state Sen. Tarryl L. Clark, DFL-St. Cloud, called the measure "an important thing."

"There was some concern that he [Pawlenty] might drag his heels," said Clark, assistant majority leader. "We are just trying to ensure that our state maximizes our opportunities in case the governor wouldn't act or chose to act in a limited way."

For his part, Pawlenty has indicated that he will accept the money despite his misgivings — even banking on using some of it to help balance the budget.

"We understand that when someone else is sending you money they are going to send along some requirements," said Brian McClung, Pawlenty's director of communications.

Hamline University law professor David Schultz pointed to federal programs that allow cities to apply directly for federal money as an instance where the state government is bypassed altogether.

"The money goes directly to cities," Schultz said. "So it is not unusual to bypass governors, it happens all the time. It is just the way" it's being done that is unusual.

According to Jacobs, the bill's language now ensures that the DFL-controlled Legislature has some significant "cards to play in negotiations with the governor."

"It's a very clever strategy," said Jacobs.

Veto-proof strategy
If a governor does not accept the funding then it goes to the legislature, which can pass it by concurrent resolution, a legislative measure that is usually used for non-controversial, ceremonial or commemorative items.

Concurrent resolutions must be passed by both the state Senate and House, but do not have to be acted upon by the governor and are therefore veto-proof.

While federal money that comes with "strings attached" is not altogether unique or unexpected, this measure stands apart because it seeks to go beyond simply dictating how a state should use its federal handout, according to Jacobs.

At the same time, proponents of the provision argue that the current economic situation is extraordinary enough that exceptions to the norm are required.

"The legislation is unique and the times we face are unique," said Kristie Greco, a spokesperson for Clyburn. "No constituents should be denied federal funding, especially assistance under this package, because of a governor's political aspirations or political ideologies…you have to put it in that context."

As of Wednesday evening, confusion and uncertainty abounded over how the provision would be interpreted and whether any governors would turn down the money, setting the stage for the provision to take effect.

Some political experts said that the provision could potentially end up in the courts. Others said that would be highly unlikely and legal challenges to the provisions would probably fail anyway.

Pervasive federal government
Either way, most agreed that the stimulus package, in its entirety, and the 45-day measure, specifically, served to underline the country's move toward a more pervasive federal government.

"I don't think that this is going to generate lawsuits and I doubt that it would become a constitutional challenge to the authority of the state given the emergency and the crisis conditions," said Nivola. "But the fact that they were able to tuck this into the package, seemingly without a lot of debate, suggests that the federal intervention into state and local areas that has been expanding over time is continuing to do so."

When looking at domestic spending, the federal and state contributions have been fairly equal over the years, according to Paul E. Peterson, a professor of government at Harvard University and an expert on federalism.

With the stimulus, the federal contributions on domestic issues from education to transportation to health care now stand to go up significantly and aren't likely to go away anytime soon, said Peterson.

"It [the 45-day provision] does show an increasing willingness of the federal government to treat the states as its agents instead of sovereign entities," said Peterson. "It is a leading indicator of a broader phenomenon that is at work here."

Then again, Peterson added, the states have not done a very good job in positioning themselves to ward off such intrusions.

In a way, "the states have invited this," said Peterson. "They haven't kept their fiscal houses in order… they are the General Motors of the American government."

Cynthia Dizikes covers Minnesota's congressional delegation and reports on issues and developments in Washington, D.C. She can be reached at cdizikes[at]minnpost[dot]com.

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Comments (15)

Might an unintended consequence of this language be political cover for the reluctant governors? They could keep their fiscal conservative purity and refuse the money, knowing that it would reach their states anyway via the legislature. While citizens might be annoyed at first, once the state gets the money all might be forgiven and forgotten. Meanwhile, the governors haven't tarnished their conservative reputations with their local base or, for those with an eye on higher office, the party kingmakers on the national level.

I encourage all Governors, but especially my own, to abide by the Oath of Office in which they all swore to uphold the constitutions of their states.

With the knowledge that this overthrow of the sovereignty of the states exists in the ARRA, buried as it is among the rest of the detritus, it becomes a matter that they simply cannot abide.

Similarly, the state legislators swore the same oath, and should they decide to break the trust of the people that voted them into office, it becomes the sacred duty of We The People to remove them from office forthwith.

Anyone that has, in good faith, doubted that the real agenda of this dastardly piece of legislation was the remaking of America into a pseudo-Communist fiefdom under the control the Democrat party can now officially and without loss of honor join the ranks of the informed chorus of loyal Americans who reject it and its authors in their totality.

Mr Swift; You said it very succinctly as my previous reply to this seems to have been too "heated" and therefore; stricken.

You said it perfectly well. The only thing missing is what to do if they (the Feds) start to unravel and undo our very constitution.

I believe this provision is designed not to usurp a governor's authority but to ensure that the governor does not, as Pawlenty keeps doing, use funds collected for and dedicated to health care for the purpose of balancing the budget without raising taxes. Lots of the money the government is sending will be earmarked for Medicaid and for extended unemployment benefit payments. It should not be used for anything else.

The feds are, in my opinion, absolutely right. In this case, human rights trump states' rights.

Now we just need federal legislation that would allow us to more easily get rid of governors like Pawlenty.

You don't have to apologize for being outraged, Jeff. This is by far the most blatant power grab I have ever heard, or read of being perpetrated against our country.

The next step, of course, is for a patriotic Governor to make a stand in defense of his state constitution and the people that elected him, and take this trash to the US Supreme Court where it can be properly disposed of.

I, for one, would be incalculably proud if that man was Tim Pawlenty.

This does not seem draconian to me. Governors like Pawlenty who do not want taxes, can turn down this moeny as well IF THEY WISH.

But because they have a "no tax" ideaology, and are too rigid to accept money offered to assist their state, why should the public suffer from their ideological positions. The citizens shouldn't; and this allows for a recourse to get THEIR voices heard, and more reasonable positions to come into play. I do not see how this shreds the constitution at all.

I think it is important to remember that we would not have needed a stimulus plan in the first place if Bush did not run the country into the ground. President Obama has to clean up the mess of the last eight years.

When Clinton left the house in 2000, we had a surplus. When Bush came in, he squander the money. As a result, we are in a recession. Some of you talk about a power grab well if nothing is done people will probably have to grab clubs and climb trees.

I think that all who supported Bush's decisions should take responsibility for the economic mess we are in.

"...this allows for a recourse to get THEIR voices heard.."

I remember, back in America, when we had something called a "vote" that accomplished that.

"I do not see how this shreds the constitution at all."

Oddly enough, people that shared that view were given the right to use this "vote" thing too, which they used to put us in the position we are in today.

Ironic, ain't it? *shrug*

Thanks, this is an interesting tactic. Wily liberals are adept at getting their way, and adapting, truth and reason be damned.

It is a sad commentary on the state of the Republic, really

I am encouraged that the president is aware of the potential manipulations of some republicans. I see Pawlenty's constant challenge to the legislative process as a way to make government fit an ideology. I'd like to see a governor deal with reality rather than ideology. Sadly that ideology has wrecked our economy. We don't need his supporters telling us that Pawlenty has a better plan. It did not work and it won't work in the future.

We're smarter than you think. (Mr. Swift)

William, you must be new to politics; this is standard fare for the left. The only thing new in this case, is the size of the bite they wish to take out of our freedom.

Up until now, the Democrat party has been content to patiently kill off Democracy by a thousand cuts.

Doug, if the comments we read here are the measure, I'll defer commenting on "your" (pl) intelligence, but I admit that I stand in awe of "your" (pl) capacity to rationalize the irrational, defend the indefensible and the overall display of brazen audacity.

Pawlenty is Minnesota's Governor, not its Emperor.

Has any Governor ever had the authority and the will to refuse to spend Medicaid funding? My memory tells me no, but I could be wrong.

Federal funding of many kinds comes with strings attached, it happens all the time, and this has been the case for years & years.

As for "...they were able to tuck this into the package, seemingly without a lot of debate..." - it is disheartening to note that many of our federal legislators vote on bills without reading them (unbelievable, but true)! Remember the Patriot Act? It was also huge, no one seems to have read it, and as I recall, John Ashcroft demanded it be passed in a week - or else the sky would fall.

The success of the stimulus depends on getting this money into the economy as quickly as posible. Republican leader Rush Limbaugh has made it clear that the Republicans want Obama, and by extension the country, to fail. Couldn't this provision be a defense against the Republicans stated wish?

Steve, do you have any idea what Medicaid is, or how it is administered? Any clue at all?

How about I slip you a tip?

Medicaid is a federal-state partnership, Steve. Each state administers the plan according to it's own laws regulations, waivers, and plans.

Because each state uses it's rights as a sovereign entity, significant variations exist in what "Medicaid" means from state to state. If a Governor so chose, he could veto his state's contribution, which would trigger a withholding of the federal portion.

A state's legislature could, and probably would override such a veto. But as of today, the federal government has no power to force a state to either contribute or participate in the plan.

What makes this whole thing so tragic is that you people (leftists) do not even understand what it is you are rushing to flush down the toilet. Frankly, it's disgusting.

Turns out that the fight over mandatory flag pledge recitals in public schools missed the point altogether; we should have been requiring a mandatory recital of the Constitution of the United States all along.

I remember 'states rights' as an argument against civil rights, environmental protection, and other policies and so confess to not having much sympathy here.
The problem is rather like Federal controls on air pollution -- pollutants don't recognize state boundaries and so broader controls and interventions are necessary. Similarly, a governor rejecting stimulus money impacts the national and world economy as we struggle toward recovery, reduces Federal tax revenues, and impacts all of us.
That said, bypassing reluctant governors to go to state legislatures doesn't seem an issue of 'states rights' at all, but an issue that now that our course has been set, finding people willing to be accountable for execution.