University of Southern California

Rethinking Conditional Federal Grants and the Independent Constitutional Bar Test

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Note by Douglas A. Wick
From Volume 83, Number 6 (September, 2010)

On a crisp January night, a SWAT team descends on a house in Pullman, Washington. Onlookers can only imagine what type of crime warrants such a response. Was it a hostage situation? Were they trying to subdue a psychotic killer? Maybe there was a violent drug cartel operating out of the house? No. On January 21, 2009, a SWAT team raided a Washington State University fraternity house because some college students may have been drinking alcoholic beverages before their twenty-first birthdays.

The National Minimum Drinking Age Act forced states to raise their drinking age to twenty-one, or lose federal highway funds. The negative side effects of that law—illustrated by the extreme example above—are leading many to call for its abolition. The American Recovery and Reinvestment Act of 2009 will dole out $144 billion to ease fiscal pressures on state and local governments, but instead of allowing them to spend the money based on their best judgments, Congress attached unattractive conditions to the grants. The No Child Left Behind Act of 2001 grants money to states conditioned upon school districts meeting federally imposed education standards. The result is bad education policy the states cannot afford to abandon, lest they lose much-needed federal aid. Congress could not enact any of these policies directly. Instead, Congress used its spending power to indirectly regulate these state and local matters via conditional grants.

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