Could Congress pass a law that revoked some of a states funding until they mandate vaccines, or can the federal government not withhold funding to get states to pass laws?
Can the federal government withhold money from states that refuse to institute vaccine mandates?
1Maybe we should first ascertain if mandating vaccines pass a constitutional test. Generally there has been a widespread consensus that people do have the right to refuse medical treatments.– Neil MeyerAug 16, 2021 at 17:44
@NeilMeyer It's an open question. Jacobson is the "controlling" precedent, but it was decided during the eugenics era before Nazis made eugenics unfashionable so a modern SCOTUS could overturn or restrict it.– IllusiveBrianAug 16, 2021 at 17:52
Yes, they absolutely can do this as long as they write the rules to allow this and they have done this for other things. There is nothing that prevents congress from deciding how to allocate those funds and what is required to get them though it could always be challenged in court.
A good example of this would be the drinking age of 21 and how federal provided highway funds will get withheld if a state doesn't prevent under 21 from drinking.
The 1984 National Minimum Drinking Age Act, [23 U.S.C. § 158], requires that States prohibit persons under 21 years of age from purchasing or publicly possessing alcoholic beverages as a condition of receiving State highway funds.
1I think they did this for the 55 MPH speed limit and "right turn on red", too.– BarmarAug 15, 2021 at 0:43
Can the federal government withhold money from states that refuse to institute vaccine mandates?
Yes, provided the money withheld is related to paying for vaccinations. (See, Relationship Between the Conditions and the Purpose of the Federal Funds, below.) But, understand that it would not likely happen, because the federal government wants people to be vaccinated. Withholding funds used for vaccinations would make it less likely that people would become vaccinated.
The Federal Government’s Authority to Impose Conditions on Grant Funds, March 23, 2017
The Spending Clause
While Congress would generally not be permitted to compel state legislators or executive officials to enforce or administer a federal regulatory program, it could provide federal grants to encourage states to participate in a federal program. Providing federal funds to nonfederal entities has been seen to constitute an exercise of one of Congress’s enumerated powers, namely, its power under the Spending Clause of the Constitution (Article I, Section 8, Clause 1). The Spending Clause expressly empowers Congress "to lay and collect Taxes, ... to ... provide for the ... general Welfare of the United States." When Congress uses its Spending Clause authority, it may generally prescribe the terms and conditions under which the federal funds are accepted and used by recipients. These conditions may generally specify that the funds be used for particular purposes or, alternatively, prohibit their use for certain purposes.
Recipients of federal financial assistance in the form of grants may also be required, as a condition of accepting the grant, to perform or refrain from certain actions. Through the attachment of such conditions to federal funding, Congress may attain federal policy objectives in areas that it lacks the power to regulate directly (that is, the objectives do not fall within "the enumerated legislative fields committed to the Congress" by the Constitution). As the Supreme Court has explained, legislation enacted pursuant to the Spending Clause is one significant way that Congress may influence state behavior without "commandeering" state officials in violation of the Tenth Amendment:
Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy.
Although Congress’s power under the Spending Clause is expansive, the Supreme Court articulated certain limitations on the use of federal grant conditions in its 1987 decision in South Dakota v. Dole — which arguably remains the leading decision regarding the use of the federal government’s conditional spending power — and in subsequent cases. In particular, these limitations require that any conditions attached to the receipt of federal funds must:
be unambiguously established so that recipients can knowingly accept or reject them;
be germane to the federal interest in the particular national projects or programs to which the money is directed;
not violate a separate constitutional provision, such as the First Amendment or the Due Process or Takings Clauses of the Fifth Amendment; and
not cross the line from enticement to coercion, such that states have no real choice but to accept the funding and enact or administer a federal program.
With regard to item 2, "germaneness",
Relationship Between the Conditions and the Purpose of the Federal Funds
The Supreme Court has also suggested that grant conditions may be improper if they are unrelated "to the particular national projects or programs" to which the federal funds are being directed. The Court has not provided further elaboration on the nature of this "relationship" requirement, other than by noting that grant conditions must "bear some relationship" to the underlying purposes of the funds "otherwise ... the spending power could render academic the Constitution’s other grants and limits of federal authority." The Court does not appear to have invalidated a federal spending condition on the basis that it fails this "relatedness" standard, nor has any lower court seemingly done so.
In its 1982 decision in South Dakota v. Dole, the Supreme Court engaged in what is arguably its most notable discussion of the "relatedness" standard to date. The Dole case concerned the National Minimum Drinking Age Amendment of 1984, which authorized the Secretary of Transportation to withhold 5% of federal highway funds from states which permitted persons below 21 years of age to purchase alcohol. The State of South Dakota, which allowed persons as young as 19 years old to purchase alcohol, did not argue that this federal highway funding condition violated the "germaneness" principle, instead conceding that it "ha[d] never contended that the congressional action was ... unrelated to a national concern in the absence of the Twenty-first Amendment." Nevertheless, a majority of the Court opined that although the grant "condition was not a restriction on how the highway funds — set aside for specific highway improvement and maintenance efforts — were to be used," conditioning a portion of a state’s federal highway funds on its adoption of a minimum drinking age of 21 years was permissible because it was "directly related to one of the main purposes for which highway funds are expended — safe interstate travel." The dissenting opinion authored by Justice O’Connor, in contrast, would have found that this drinking age condition not to be sufficiently related to the expenditure of federal funds for highway construction. In particular, Justice O’Connor argued that Congress:
is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State’s social and economic life because of an attenuated or tangential relationship to highway use or safety. Indeed, if the rule were otherwise, the Congress could effectively regulate almost any area of a State’s social, political, or economic life on the theory that use of the interstate transportation system is somehow enhanced.
2Given Joe's example, I'm not convinced this is the only way the Federal gov't could "punish" such states. Note that the Q does allow for new legislation. It's probably not unconstitutional to tie random other "pork" to vaccine mandates (in new laws). Whether such laws could pass (filibuster) is another matter...– FizzAug 15, 2021 at 0:42
It should be viewed the other way: If you mandate vaccinations, we'll provide federal dollars to subsidize the program, rather than withholding as punishment for not mandating.– BarmarAug 15, 2021 at 0:44
@Fizz - "Recipients of federal financial assistance ... may also be required, as a condition ..., to perform ... certain actions." There must be a link between the assistance granted and the condition; thus Congress could not withhold unrelated funds as a condition. This is settle law. Drinking age and road construction/repair are related. Aug 15, 2021 at 1:22
1The part you've quoted from the Supreme Court does't say they have to be related. Nor does that bit seem to be in the Constitution. "Settled law" is more like what the CRS says the current practice is.– FizzAug 15, 2021 at 1:29
@Barmar - It should be viewed the other way. Yes, it should, but its not like that. Going from memory, the CARES Act uses federal funds to pay for all vaccines and their administration. If one is vaccinated at a pharmacy, for example, the pharmacy submits an invoice to the feds. In a few cases, mostly Medicaid and foster care, the state has responsibility for administering vaccinations. Withholding funds for vaccinating those individuals is in no one's interest; but that is where the "leverage" would be. Aug 15, 2021 at 1:36
I think that FedGov can lawfully use these non-forceful tax incentives to restrict social activities to reasonably prevent disease spread. My understanding is that Congress can use this digression IF the issue falls under their power to tax (enumerated powers). The "general welfare" clause and the "interstate commerce" clause have been massively abused in other cases, but this case seems clear.
Measures that reduce the prevalence and spread of disease seem perfectly within the "general welfare" clause. It aids everyone (broadly, generally), and is, in this case, non-rivalous. Of course this grant-witholding applies to COVID containment funding only.
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