Jake Curtis, writing on the homepage, brings attention to an issue that deserves it: the way the federal government uses money to get the states to do what it wants. But I don’t think he makes the case for having the federal courts curtail the practice.

He’s writing on the 30th anniversary of South Dakota v. Dole, a case in which the Court upheld the federal government’s power to condition highway funding for the states on their adoption of a law prohibiting alcohol purchases for those under 21. I agree that it was wrong for Congress to pass that law and for President Reagan to sign it. It’s less obvious to me that the seven justices who allowed the law to stand — including the two most conservative justices on that court, Chief Justice William Rehnquist and Justice Antonin Scalia — were wrong.

The problem, as I see it, is a simple one: The Constitution lays out no explicit rule for distinguishing between permissible and impermissible conditions for federal aid to states, and no such rule can be plausibly inferred from it.

To my mind, the Court illustrated this point in NFIB v. Sebelius (2012), when it forced a modification of Obamacare’s provisions on Medicaid. The law said that states had to expand Medicaid or lose all their Medicaid funds. The Court — with seven justices in the majority, admittedly including all the conservatives — said that the federal government could not force the states to make that choice. It could, however, tell states that refusing to expand the program would keep them from getting some new Medicaid funds from the federal government. The distinctions the Court drew between permissible and impermissible conditions, however, are labored and their grounding in the constitutional text basically non-existent.

For the Court to become more active in striking down conditions on federal funding for the states, the justices would have to rely on some extra-constitutional sense that “this condition seems to go too far, while that one doesn’t.” There being no constitutional basis for drawing that distinction, responsibility for the line should be left to the legislature, the president, and the voters who elect both.