NFIB Sebelius Dissent



tary grants, so-called grants-in-aid, became more frequent
during the 1930’’s, G. Stephens & N. Wikstrom, Ameri-
can Intergovernmental Relations—-A Fragmented Federal
Polity 83 (2007), and by 1950 they had reached $20 billion8
or 11.6% of state and local government expenditures from
their own sources.9  By 1970 this number had grown to
$123.7 billion10 or 29.1% of state and local government
expenditures from their own sources.11 As of 2010, fed-
eral outlays to state and local governments came to over
$608 billion or 37.5% of state and local government

When Congress makes grants to the States, it customar-
ily attaches conditions, and this Court has long held that
the Constitution generally permits Congress to do this.
See Pennhurst State School and Hospital v. Halderman,
451 U. S. 1, 17 (1981);  South Dakota v. Dole, 483 U. S.
203, 206 (1987); Fullilove v. Klutznick, 448 U. S. 448, 474
(1980) (opinion of Burger, C. J.); Steward Machine, supra,  
at 593.


 This practice of attaching conditions to federal funds
—————— 8 This number is expressed in billions of Fiscal Year 2005 dollars.
9 See Office of Management and Budget, Historical Tables, Budget of
the U. S. Government, Fiscal Year 2013, Table 12.1-—Summary Com-
parison of Total Outlays for Grants to State and Local Governments:
1940–2017 (hereinafter Table 12.1),
budget/Historicals; id., Table 15.2—Total Government Expenditures:
1948–-2011 (hereinafter Table 15.2).
10 This number is expressed in billions of Fiscal Year 2005 dollars.
11 See Table 12.1; Dept. of Commerce, Bureau of Census, Statistical
Abstract of the United States: 2001, p. 262 (Table 419, Federal Grants-
in-Aid Summary: 1970 to 2001).
12 See Statistical Abstract of the United States: 2012, p. 268 (Table
431, Federal Grants-in-Aid to State and Local Governments: 1990 to


greatly increases federal power. “”[O]bjectives not thought
to be within Article I’’s enumerated legislative fields, may
nevertheless be attained through the use of the spending
power and the conditional grant of federal funds.””  Dole,
supra, at 207 (internal quotation marks and citation omit-
ted); see also College Savings Bank v. Florida Prepaid  
Postsecondary Ed. Expense Bd., 527 U. S. 666, 686 (1999)
(by attaching conditions to federal funds, Congress may
induce the States to “”tak[e] certain actions that Congress
could not require them to take””).

 This formidable power, if not checked in any way, would
present a grave threat to the system of federalism created
by our Constitution. If Congress’’ ““Spending Clause power
to pursue objectives outside of Article I’’s enumerated
legislative fields,”” Davis v.  Monroe County Bd. of Ed., 526
U. S. 629, 654 (1999) (KENNEDY, J., dissenting) (internal
quotation marks omitted), is ““limited only by Congress’’
notion of the general welfare, the reality, given the vast
financial resources of the Federal Government, is that
the Spending Clause gives ‘’power to the Congress to tear
down the barriers, to invade the states’’ jurisdiction, and to
become a parliament of the whole people, subject to no
restrictions save such as are self-imposed,’'” ”  Dole, supra, at
217 (O’Connor, J., dissenting) (quoting Butler, 297 U. S.,
at 78). “”[T]he Spending Clause power, if wielded without
concern for the federal balance, has the potential to oblite-
rate distinctions between national and local spheres of
interest and power by permitting the Federal Government
to set policy in the most sensitive areas of traditional
state concern, areas which otherwise would lie outside
its reach.”” Davis, supra, at 654-–655 (KENNEDY, J.,

 Recognizing this potential for abuse, our cases have long
held that the power to attach conditions to grants to the
States has limits.  See, e.g., Dole , supra, at 207–-208; id.,
at 207 (spending power is “subject to several general re-