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The ten worst Supreme Court decisions of all time: Episode 3 — How Congress turned the state legislatures into their slaves

South Dakota v. Dole (1987)

Congress put a rider on a highway funding bill that required every state to adopt a drinking age of 21 or face a loss of 5% of their federal highway funding. South Dakota's legislature had passed a drinking age of 19 for certain beverages.

South Dakota sued, arguing that this robbed the legislature of their authority to set their own policy on this subject through economic coercion. The Supreme Court ruled that it was not coercion because it was just 5% of the funding.

This is how all federal mandates work. Congress dangles some money in front of the states and demands compliance. People think this is fair since the states don't have to take the money and if they want the money from Congress, they should agree to the strings that are attached.

Here is what is wrong with this whole practice.

1. Congress is using the General Welfare Clause as its authority for this kind of spending. This Clause was NOT intended to grant Congress the ability to regulate the states. Rather, the opposite was true. The proper meaning is that Congress cannot spend any money on a subject that is within the states' jurisdiction.

2. There is no such thing as federal money. It is 100% taxpayers' money, not Congress's. Congress cannot legitimately take money from voters, send it back to the state legislatures and order the legislators not to listen to the voters' will but to listen to Congress.

3. This is a denial of a Republican form of government. The states never consented to give Congress authority to fund education, welfare, and all the other domestic programs that are affected. In the South Dakota case, this meant that the voters in California, Massachusetts, New York, etc. had chosen members of Congress who were forcing the legislators in South Dakota to follow their will. When state legislators are forced to obey members of Congress from other states, this denies the voters of South Dakota the right of self-government.

A Convention of States can fix this--permanently.

Language can be added to modify the General Welfare Clause to forbid Congress from spending money beyond their enumerated powers and from dictating policies to the states.

Robust federalism requires a total end of this charade.