Is the Bankrupt the Nation Act Unconstitutional?

Ronald Rotunda, is currently a Professor of Law at George Mason University.  Twenty-seven years ago he had the onerous task of attempting to beat legal ethics ( and I can almost hear most of you shouting “Oxymoron!”) into the heads of second year law students at the University of Illinois.  I was one of his pupils.  I came away from his class no more ethical than when I went in, but with a thorough knowledge of the rules regarding legal ethics in the state of Illinois.  I also came away with a keen appreciation for both Professor Rotunda’s dry wit, and his strong intellect.  Here  is his web-site.  He is the one wearing a bow tie and not the Vulcan.  As you can see from his site, Professor Rotunda, unlike most law professors and most lawyers, does not take himself very seriously.

I do take seriously anything he says about constitutional law however.  He is one of the foremost authorities on that subject, his six volume treatise on constitutional law with John Nowak, another professor of my alma mater, being perhaps the standard text used on that huge topic.

Professor Rotunda believes that the Bankrupt the Nation Act of 2009, erroneously called a stimulus bill, is probably unconstitutional.  Here is his column on the subject.  I am sure that Professor Rotunda will be vastly relieved to know that I agree with him.  The provision he cites,  1607(b): “If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.”, is a radical attempt by the federal government to intervene in the internal governance of the states.  The constitution simply does not give such broad powers to the Congress to interfere in the governance of the states, and I think it highly likely that the current US Supreme Court will find this provision unconstitutional, and the vote to do so might be unanimous.

As to the question of whether the courts would be able to sever this portion of  the bill from the rest of the bill, amazingly it appears that Congress did not insert a standard severability provision (“If any section, paragraph, sentence, clause, phrase or any part of any act passed hereafter is declared to be unconstitutional or void, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases or parts thereof shall be in no manner affected thereby but shall remain in full force and effect.”) into the bill.  Considering the massive size and complexity of this bill, it shows a stunning lack of competence of the part of the drafters in Congress not to have included such a provision.  A whale of a legal fight awaits on this issue.