1. CONSTITUTIONAL LAW TAXING AND SPENDING POWER Class 13: February 6, 2008 Professor Fischer

2. Article I § 8 cl 1 “Congrses shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States

3. United States v. Butler (1936) [C p. 198] 6-3 Majority opinion of Justice Roberts, joined by “Four Horsemen” and Chief Justice Hughes Dissent by Stone joined by Cardozo and Brandeis (collectively called the “Three Musketeers”)

4. Steward Mach. Co. v. Davis (1937) [C p. 200] 5-4 Majority opinion by Cardozo Four Horsemen Dissent essentially on Tenth Amendment grounds

5. Sabri v. United States (2004) [C p. 201] 9-0 Souter wrote the majority opinion Thomas concurred Kennedy also wrote a concurrence, joined by Scalia (not in book) The picture on the left is of Basim Sabri

6. South Dakota v. Dole (1987) [C p. 205] 7-2 Majority opinion of Justice Rehnquist

7. South Dakota v. Dole (1987) [C p. 205] Majority opinion of Justice Rehnquist: restrictions on conditional spending 1. must be for “general welfare” 2. conditions must be unambiguous 3. conditions may be illegitimate if unrelated to the federal interest in particular national projects or programs 4. independent constituional bar limitation – can’t induce states to engage in activities that would be unconstitutional

8. South Dakota v. Dole (1987) [C p. 205] Dissent of Justice O’Connor: To what extent does she disagree with Rehnquist’s reasoning?