MBE Fast Fact: The Spending Power

There are only a few things to know for the MBE about Congress's spending power. First, the power of Congress to spend (and tax) can be exercised only for the general welfare of the United States. A very common question appearing on the MBE is one in which Congress requires states to comply with specified conditions in order to qualify for federal funding. The fact that Congress has offered the funding is allowable, but the issue is whether it can condition receipt of the funding on compliance. The rule to note is that Congress can require states to comply in order to receive the funding. For example, Congress can withhold federal highway funds from any state that refuses to enact a law permitting the purchasing of alcoholic beverages by only those over the age of 21.

An important distinction to note is where Congress attempts to compel the states to enforce federal regulations. Though, as stated above, Congress can encourage the states to adopt certain federal regulations through the spending power (by attaching conditions to the receipt of federal funds), or through the commerce power (by directly pre-empting state law), Congress cannot directly compel states to enforce federal regulations, as this would violate the 10th Amendment.