Petition for Writ of Certiorari — Reisch v. Sisney

Supreme Court, U.S.

FILED

No. OFFICE OF THE CLERK

in ‘The

Supreme Court of the Gnited States

TIM REISCH, et ai..

Cross-Petitionerss.

Vv.

CHARLES E.. SISNEY: JAMES DEAN VAN WYHE:

AND UNITED STATES OF AMERICA.

Cross-Respondents.

On Cross-Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

Conditional Cross-Petition

for a Writ of Certiorari

James E. Moore John C. Eastman

Woons, FULLER, Counsel of Record

SHULTZ & SMITH 840 E. 37th Street

300 S. Phillips Ave. Long Beach, CA 90807

P.O. Box 5027 (562) 426-1934

Sioux Falls. SD 57117

(605) 978-0613

Counsel for Cross-Petitioners

—

I

QUESTION PRESENTED

Whether federal spending for state prisons

violates the “general Welfare” limitation of the

Spending Clause, and this Court’s precedent

in United States v. Butler and South Dakota v.

Dole, because it constitutes spending for local,

rather than national purposes, and because it

intrudes upon the states’ police power, which

is a core function of government, traditionally

reserved to the states?

1]

List of Parties

Cross-Petitioners: In their individual and official

capacities, Tim Reisch, Secretary of Corrections for

South Dakota; Douglas L. Weber, Chief Warden for

the Department of Corrections of South Dakota;

Dennis Bock, Associate Warden for the South

Dakota State Penitentiary; Jennifer Wagner a/k/a

Jennifer Lane, Cultural Activities Coordinator for

the South Dakota State Penitentiary; and Daryl

Slykhuis, Interim Warden for the South Dakota

State Penitentiary.

Cross-Respondents: Charles E. Sisney and James

Dean Van Wyhe, inmates at the South Dakota State

Penitentiary and Appellees below; United States of

America, Intervenor and Appellee below

QUESTION PRESENTED

TPR SI PAF 8 Re AI vs venesencecdticangcccsnncdsvcauecantvcnne’

111

TABLE OF CONTENTS

iV

Ce Ue I ON sags be conseessanneecs eased eens I

STATEMENT OF JURISDICTION..........000000000..

CONSTITUTIONAL AND STATUTORY

FR Vee BIO MPa HO ovis svnacsiicuasscosscevassecnicncvacsss 2

STATEMENT OF THE CASE...........0.0...00... Saanilaesaees 3

REASONS FOR GRANTING THE WRIT......0000000....... 4

I. RLUIPA Exceeds Congress’ Authority

Under The Spending Clause Because It

Constitutes Spending That Is Not For The

“General Welfare” As Required By The

Constitution, As Understood By The

Framers, and As Affirmed By Supreme

AE FGI. Sissisccexseacsteesrneesininnaceaieanen 8

A. “General Welfare” Means National

Rather Than Locai Welfare. .................. bie 11

B. Existing Precedent of this Court

Confirms the General Welfare Limit on

Congress’ Spending Power.... 19

CONCLUSION ... 23

1V

TABLE OF AUTHORITIES

CASES

Benning v. Georgia,

391 F.3d 1299 (11th Cir. 2004) .................ssece0e. 22

Charles v. Verhagen,

346 F.3d G01 C7th Cir. 2003) ........22.02.00cccccccscnes econ: 22

Cutter v. Wilkinson,

SO RC, I aise naeestaemanseannnnnuin 4

Cutter v. Wilkinson, 423 F.3d 579 (6th Cir.

2005), rev'd on other grounds, 544 U.S. 709

(2005) .....: AE UST ACARD OATS Op ADDN eto ULI RANE ere 22

Davis v. Monroe County Bad. of Educ.,

Bi ee ae. ee Ne Solicit heim

Helvering v. Davis,

er 0 MEAP SAEED biiekasctcncdcaveunres pa aes Fat BADE 21

M.A. ex rel. ES. v. State-Operated School Dist

of the City of Newark, 344 F. 3d 335 (3d Cir.

| ERAN eee ARR eo eer PETE INT Te arene 7

Madison v. Virginia,

474 F.3d 118 (4th Cir. 2006) ...............0..cccee eee ee sees 22

Mayweathers v. Newland,

$14 F.3d 1062 (Oth Cir. DO0B) ...0.:...cscsececessenseccsces 22

New York v. United States,

505 U.S. 144 (1992) .........0.0..... are Sea EEE Po a 6

Preiser v. Rodrigeuz,

AE TT Fe Fee Ce vovsrcokcessscscugoewsesasontee ae 18

Printz v. United States.

521 U.S. 898 (1997) .... J pS eee ewe ee ee

‘

¥

Semunole Tribe of Fla. v. Florida,

ee re goin cee onnnssonrpmvwtandeamennins 6

Sisney v. Reisch,

533 F. Supp. 2d 952 (D.S.D. 2008)...........2:::0 ee 3

South Dakota v. Dole.

gts Et): : I pone Nermmre ram E passim

United States v. Butler,

297 U.S. 1 (1936) ...... ERA e ete pte Ne AU NN FP passim

United States v. Lopez,

514 U.S. 549 (1995) .......... eee Scene 5, 7, 10, 23

United States v. Morrison,

5629 U.S. 698 (2000) ............02000c.0000000. oleae 6, 18, 23

Van Wyhe v. Reisch,

581 F.3d 639 (8th Cir. 2009) ............ceee eee passim

STATUTES

Br Ne aiice sa svccntednctcnnisve va hu scaniracensoemmianareaeaaion 3

A ee IE cidasencehcee cl ckslicortecontas oka 3

42 U.S.C. §§ 2000cc—2000cc—5S .......................-. PaSsim

American Recovery and Reinvestment Act of

2009, Pub. L. No. 111-5, § 1607(b), 2009

FSC AE CIB8 BRE. BI asscnics cs nencvinsiisnncsenntanios 1]

U.S. Const. Art. I, Sec. 8, cl. 1..........00.............. passim

Ue. Comet. Art. 1. Bee. B. CL. Bevicccdiccvescnssscsesene passim

VI

OTHER AUTHORITIES

Be ie CII BT TE i isisesss sevenvncssnisesnoesvesesenens 14

39 Annals of Cong. 1849 (1822) .................. ere. te

39 H.R. Journal 1081 (1844) .......... eee ae 15

Be Bee IE OO FD nssikasencsieveiveinesanconessonenccess 15

Oe Fa Be INT OF CIGD onvcssvscnennscnncecccnsscnoasievesncene aU

43 H.R. Journal 88 (1847)......... Se RP ee eee kA 15

45 S. Journal 361 (1854) ......... Hee Aan COCR 15

OOP Be es. POITIUE e CL onic ccsnssncacsssnenonssensavecns 15

Baker, Lynn A., The Spending Power and the

Federalist Revival, 4 CHap. L. REV. 195 (2001)......8

Baker, Lynn. A. & Berman, Mitchell N., Getting

Off the Dole: Why the Court Should Abandon

Its Spending Doctrine, and How a Too-Clever

Congress Could Provoke it to Do So, 78 IND.

esis NI I cis is gosh bd sdhnenevadavssnavecernccaxonnseas 7, 10

Buchanan, James, Message to the House of

Representatives (Feb. 24, 1859), reprinted in 5

A COMPILATION OF THE MESSAGES AND PAPERS

AND PAPERS OF THE PRESIDENTS 1789-1897, at

543, 547 (James D. Richardson ed., 1897).............. 9

Buchanan, James, Veto Message to the House of

Representatives (Feb. 24, 1859), reprinted in 5

A COMPILATION OF THE MESSAGES AND PAPERS

OF THE PRESIDENTS 1789-1897, at 548................. 16

Davey, Monica, Senator Nelson Defends His

Health Care Vote, New York Times A138 (Dec.

TERIA pee Oe inter eeu nt EAL Sane Ae ea 24

Vil

Eastman, John C., Restoring the “General” to

the General Welfare Clause, 4 CHAP. L. REV.

gc | ERE My helen er Ieee yah aD an 17

Hamilton, Alexander, Report on Manufactures

(1791), reprinted in 2 THE FOUNDERS’

CONSTITUTION at 446-47 (Philip B. Kurland &

PERRI EMCEE OOH. TOT) a. cccanciieicsncsscceccossoonsssune 9,13

Jefferson, Thomas, Opinion on the

Constitutionality of the National Bank (1791),

reprinted in THOMAS JEFFERSON: WRITINGS, at

416 (Merrill D. Peterson, ed., 1984)..............2....... 12

Jefferson, Thomas, Sixth Annual Message to

Congress, reprinted in WRITINGS, at 524 ............. 13

Madison, James, Debate on the Cod Fishery

Bill, 3 Annals of Cong. 362 (1792) .................. 11, 12

Madison, James, Message to Congress, 30

PAM OE CME, BI CIT nce snccscsissevcnscsosnnicnssansene 12

Renz, Jeffery T., What Spending Clause? (Or

the President's Paramour). An Examination of

the Views of Hamilton, Madison, and Story on

Article I, Section 8, Clause 1 of the United

States Constitution, 33 J. MARSHALL L. REV.

en er re ere ee 11

THE FEDERALIST No. 41 (James Madison)............... 11

THE FEDERALIST No. 45 (James Madison)............. me i

THE RECORDS OF THE FEDERAL CONVENTION

(Max Farrand, ed., 1911). ...........ccccccceececcecenececeeeeee 18

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eighth Circuit is reported at 581 F.3d 639

and reprinted in Petitioner’s Appendix (“Pet. App.”)

at la-40a. The opinion of the United States District

Court for the District of South Dakota in Sisney v.

Reisch is reported at 533 F. Supp. 2d 952 and

reprinted in Pet. App. 41a-142a. The District Court

also issued an opinion in Van Wyhe uv. Reisch,

reported at 536 F. Supp. 2d 1110, that was part of

the consolidated appeal considered by the Eighth

Circuit. Because its discussion of the issues raised

by Sisney’s Petition and this Cross-Petition mirrors

the opinion in Sisney v. Reisch, it was not reprinted

in Petitioner's Appendix and is not reprinted here.

STATEMENT OF JURISDICTION

The decision of the Eighth Circuit Court of

Appeals was entered on September 10, 2009 (Pet.

App. 1a). On December 1, 2009, Justice Alito

extended the time to file a petition for writ of certi-

orari until January 8, 2010. A petition for writ of

certiorari was filed by Petitioner Charles Sisney on

January 8, 2010, and docketed with responses due by

February 10, 2010. Docket No. 09-821. This

conditional cross-petition for writ of certiorari 1s

therefore timely filed on or before February 10, 2010,

pursuant to Supreme Court Rule 12.5. This Court

has jurisdiction pursuant to 28 U.S.C. § 1254()).

The constitutionality of an Act of Congress is drawn

into question; the United States intervened as a

party below after certification pursuant to 28 U.S.C.

§ 2403(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 8, Clause 1 of the United States

Constitution provides: “The Congress shall have the

Power To lay and collect Taxes, Duties, Imposts and

Excises, to pay the Debts and provide for the

common Defence and general Welfare of the United

States.”

Section 38 of the Relgious Land Use and

Institutionalized Person Act (RLUIPA), 42 U.S.C.

§ 2000cc-1, provides, in relevant part:

(a) General rule

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution, as

defined in section 1997 of this title, even if the

burden results from a rule of general

applicability, unless the government

demonstrates that imposition of the burden on

that person—

(1) is in furtherance of a compelling

covernmental interest; and

(2) is the least restrictive means of

furthering that compelling governmental

interest.

(b) Scope of application

This section applies in any case in which—

(1) the substantial burden is 1mposed in a

program or activity that receives Federal

“nancial assistance...

STATEMENT OF THE CASE

Respondents Charles Sisney and James Dean

Van Wyhe are prisoners of the state of South Dakota

who contend that officials with the South Dakota

Department of Corrections (“South Dakota”) violated

the Religious Land Use and _Institutionalized

Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc

2000cc—5. Van Wyhe v. Reisch, 581 F.3d 639, 645

(8th Cir. 2009) (Pet. App. 3a). They invoked the

District Court’s jurisdiction under 28 U.S.C. §§ 1331

and 1343 and 42 U.S.C. § 1983. The District Court

in Sisney’s case denied South Dakota’s summary

judgment motion challenging RLUIPA’s

constitutionality, and held that it was a valid

exercise of Congress’ Spending Clause power. Sisney

v. Reisch, 533 F. Supp. 2d 952, 983 (D.S.D. 2008)

(Pet. App. 104a). On interlocutory appeal, the

Eighth Circuit upheld RLUIPA’s constitutionality on

the basis that it satisfied the requirements set forth

in South Dakota v. Dole, 483 U.S. 203 (1987), for

conditioning a state’s receipt of federal funds upon

compliance with a federal statutory directive. Van

Wyhe, 581 F.3d, at 649-52 (Pet. App. 14a-23a). The

court reasoned that RLUIPA satisfied the first

requirement under Dole—that spending be “in

pursuit of the general welfare’—because “the

concept of welfare ... is shaped by Congress” and

because “Congress has determined that encouraging

greater protection of religious worship within prisons

promotes the general welfare.” Jd., at 650 (Pet. App.

16a-17a) (citing Dole, 483 U.S., at 208). Having

found that RLUIPA also satisfied the remaining

requirements under Dole, the court upheld it as valid

The Eighth Circuit then granted summary

judgment to the State defendants on Sisney’s and

Van Whye’s claims for monetary damages, holding

that the claims were barred by the Eleventh

Amendment because RLUIPA did not expressly

require States to waive sovereign immunity as 2

condition for receiving federal funds. Pet. App. 23a

27a, 30a. The case was remanded to the trial court

for resolution of the few remaining claims for

injunctive relief and retaliation in Sisney’s case. Pet.

App. 39a-40a. The Eleventh Amendment immunity

holding is the subject of Sisney’s Petition for Writ of

Certiorari, No. 09-821. The remaining injunctive

relief claims have since been settled, and the

retaliation claims, unrelated to the issues raised by

the Petition and this Cross-Petition, have been set

for trial. This case is thus ripe for review by this

Court.

REASONS FOR GRANTING THE WRIT

This Court has yet to rule on whether the

“institutionalized persons” section of RLUIPA, 42

U.S.C. § 2000cc-1, is a valid exercise of Congress’

power under the Spending Clause. The issue was

noted but not reached in Cutter v. Wilkinson because

the Court of Appeals in that case had not addressed

it. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005);

see also id., at 727 n.2 (Thomas, J., concurring)

(noting that “RLUIPA... may well exceed Congress’

authority under with the Spending Clause or the

Commerce Clause’ but that the Court “properly

leclines to reach those th r tsi

the question presented and were not address«

the Court of Appeals’ ’

Here Ny contrast th Lourt ol] Appeals Nn

explicitly ruled on the issu ind this case

appropriate for review under Supreme Court Rul

\O(c): “a United States court of appeals has decided

an important question of federal law that has not

been, but should be, settled by this Court This

Court should grant the petition for certiorari becaust

the scope of the Spending Clause power—and

whether it is subject to any limits whatsoever—bears

not only on RLUIPA, but also on the myriad federal

regulatory schemes that Congress has _ enacted

pursuant to its purported authority under the

Spending Clause

Furthermore, this Court has not addressed the

Spending Clause since its landmark decision in

United States v. Lopez, 514 U.S. 549 (1995), in which

this Court reaffirmed the limited scope of Congress

power under the Commerce Clause. In Lopez, this

Court reasoned that the absence of a meaningful

limit would be akin to “convert|ing] congressional

authority under the Commerce Clause to a general

police power of the sort retained by the States.” 514

U.S., at 567. Such an arrangement would violate the

principles of enumerated powers and federalism,

which are necessary for maintaining a federal

government of “few and defined” powers. Id., at 552

see also id., at 567-68 (noting that ruling for thi

Government “would require us to conclude that thi

Constitutions enumeration of powers do not

presuppose something not enumerated, and that

truly national and what is truly local’) (interna!

citations omitted).

This Court hkewise recognized in United States v.

Morrison, 529 U.S. 598, 618 (2000), that certain

categories of activities do not fall within Congress’

Commerce Clause jurisdiction because they have

“always been the province of the States.” This Court

noted that there was “no better example of the police

power, which the Founders denied the National

Government and reposed in the States, than the

suppression of violent crime and vindication of its

victims.” IJd.; cf. Seminole Tribe of Fla. v. Florida,

517 U.S. 44, 58-73 (1996) (holding that Congress

may not use its Article I powers to abrogate state

sovereign immunity); Printz v. United States, 521

U.S. 898, 935 (1997) (holding that Congress may not

commandeer state executive officers to enforce

federal law); New York v. United States, 505 U.S.

144, 187-88 (1992) (overturning a federal provision

requiring states to take title to radioactive waste as

exceeding Congress’ authority and commandeering

state legislative processes).

The rationale supporting this Court’s recent

Commerce Clause jurisprudence applies with equal

force to the spending power, which this Court last

thoroughly addressed in South Dakota v. Dole, 483

U.S. 203 (1987). In that case, this Court recognized

a limit on Congress’ spending power when it outlined

five requirements that Congress must satisfy before

conditioning the receipt of federal funds upon a

state's compliance with a federal directive. Id., at

207-12 However. some lower courts have read Dole

as justifying an abdication of the judicial

rce the first Imit on the

responsibility to en

spending power articulated by this Court, that the

federal spending be in the “general welfare.” See

Lynn. A. Baker & Mitchell N. Berman, Getting Off

the Dole: Why the Court Should Abandon Its

Spending Doctrine, and How a Too-Clever Congress

Could Provoke it to Do So, 78 IND. L.J. 459, 464-68

(2003). The result is that Congress has used its

spending power to intrude on state sovereignty by

regulating in areas of purely local, rather than

national concern. For example, Congress has

routinely passed comprehensive regulatory schemes

regarding education, see, e.g. M.A. ex rel. E.S. vu.

State-Operated School Dist. of the City of Newark,

344 F.3d 335, 350-51 (3d Cir. 2003) (upholding

federal funding of educational services for children

with disabilities to states that complied with federal

regulatory scheme), in spite of the fact that

education has traditionally been the exclusive realm

of state authority. Lopez, 514 U.S., at 580 (Kennedy,

J., concurring) (“{I]t is well established that

education is a traditional concern of the States’).

This case presents this Court with the opportu-

nity to review its Spending Clause jurisprudence in

light of its recent acknowledgements of the impor-

tance of limiting Congress’ parallel powers under the

Commerce Clause. This Court’s assertion in Lopez

that the “Constitution mandates ... withholding

from Congress a plenary police power that would

authorize enactment of every type of legislation,”

also necessitates limiting Congress’ Spending Clause

power in order to protect federalism and to remain

faithful to the Constitution. See Lynn A. Baker, The

Spending Power and the Federalist Revival, 4 CHAP.

L. REV. 195, 196 (2001) (warning that regardless of

xO

now narrowly the court might construe Congress’

commerce power, “the states will be at the mercy of

Congress so long as there are no meaningful limits

on its spending power’); see also Davis v. Monroe

County Bd. of Educ., 526 U.S. 629, 654-55 (1999)

(Kennedy, J., dissenting) (“[T]he Spending Clause

power, if wielded without concern for the federal

balance, has the potential to obliterate distinctions

between national and local spheres of interest and

power by permitting the Federal Government to set

policy in the most sensitive areas of traditional state

concern, areas which otherwise would lie outside its

reach”). This Court should grant the petition in

order to address this vital issue.

I. RLUIPA Exceeds Congress’ Authority

Under The Spending Clause Because It

Constitutes Spending That Is Not For The

“General Welfare” As Required By The

Constitution, As Understood By The

Framers, and As Affirmed By Supreme

Court Precedent.

The first clause of Article 1, Section 8 of the

Constitution gives Congress the power to “lay and

collect Taxes, Duties, Imposts and Excises, to pay

the Debts and provide for the common Defence and

general Welfare of the United States....” U.S. Const.

art 1, § 8. Congress’ authority under this second half

of this clause, the “Spending Clause,” is plainly

limited to two purposes: (1) paying the debts of the

United States; and (2) providing for the common

defense and general welfare of the United States.

The Enghth Circuit’s finding that RLUIPA is a

valid exercise of Congress’ Spending Clause

authority because it is spending for the “general

welfare” is inconsistent with the original meaning of

this phrase. The Framers of the Constitution used

the term “general welfare” to delineate spending that

was for national purposes, as opposed to state or

regional ones. See, e.g., Alexander Hamilton, Report

on Manufactures (1791), reprinted in 2 THE

FOUNDERS CONSTITUTION at 446-47 (Philip B.

Kurland & Ralph Lerner eds., 1987) (noting that the

power is limited to appropriations for “General and

not local” objects). Subsequent presidents also

recognized that if this limit on Congress’ spending

power were removed, it would nullify the

quintessential distinction between the federal and

state governments and “constitute a _ sort of

partnership between the two... equally ruinous to

both.” James Buchanan, Message to the House of

Representatives (Feb. 24, 1859), reprinted in 5 A

COMPILATION OF THE MESSAGES AND PAPERS AND

PAPERS OF THE PRESIDENTS 1789-1897, at 543, 547

(James D. Richardson ed., 1897).

This Court affirmed that “general welfare” is a

limit on Congress’ spending power in United States

v. Butler, 297 U.S. 1, 67-68 (1936), when it

approvingly cited Justice Joseph Story for the

proposition that the spending power “extend/[s] only

to matters of national, as distinguished from local,

welfare” and held that Congress may not usc its

spending power to adopt an Act that “invades the

reserved rights of the states.” In Dole, this Court re-

affirmed these limits when it delineated “general

welfare” as the first prong of the five-prong

LO

conditional spending test it articulated. 483 U.S., at

206-07. Although the Dole Court gave substantial

deference to Congress in the determination of

“seneral welfare,” 483 U.S., at 207, the opinion deals

with the deference generally granted legislative

bodies on the question of what promotes the

“welfare” of the nation, see td., at 208, without

addressing at all the question of whether the

program is one of “general” (i.e., national) rather

than local scope. Justice O’Connor noted this

apparent incongruity between Butler and _ the

majority's opinion in Dole when she stated:

If the spending power is to be limited only by

Congress’ notion of the general welfare, the

reality, given the vast financial resources of

the Federal Government, is that the Spending

Clause gives “power to the Congress to tear

down the barriers, to invade the _ states’

jurisdiction, and to become a parliament of the

whole people, subject to no restrictions save

such as are self-imposed.”

Id., at 217 (O’Connor, J., dissenting) (quoting Builer,

297 U.S., at 78).

Congress has exploited this “loophole” in the Dole

opinion to increase the breadth of its spending power

to the detriment of state autonomy. See Baker &

Berman, Getting Off the Dole, at 499-511. The

provision of RLUIPA at issue here is merely one

manifestation of this larger phenomenon, which

merits judicial review. See Lopez, 514 U.S., at 577-

78 (Kennedy, J., concurring) (recognizing that while

preserving federalism is primarily the responsibility

of the political branches, “the federal balance is too

1]

essential a part of our constitutional structure and

plays too vital a role in securing freedom for us to

admit inability to intervene when one or the other

level of Government has tipped the scales too far”).

Indeed, even when a state has declined federal

moneys in order to avoid the conditions on state

power, Congress has sought to bypass the sovereign

structure of state government and make grants

directly to local entities. See, e.g., American

Recovery and Reinvestment Act of 2009, Pub. L. No.

111-5, § 1607(b), 2009 U.S.C.C.A.N. (123 Stat. 303)

(allowing state legislatures to accept federal funds

over the objection of the state’s governor).

A. “General Welfare” Means National

Rather Than Local Welfare.

The Framers of the Constitution understood the

phrase “general welfare of the United States” to limit

Congress’ spending power. See, generally, Jeffery T.

Renz, What Spending Clause? (Or the President’s

Paramour): An Examination of the Views of

Hamilton, Madison, and Story on Article I, Section 8,

Clause 1 of the United States Constitution, 33 J.

MARSHALL L. REV. 81 (1999). Madison and Jefferson,

for example, understood “general Welfare” as merely

granting Congress permission to use federal funds to

carry out its other enumerated powers in Article I,

Section 8, such as its war powers and commerce

power. See, e.g., THE FEDERALIST No. 41 (James

Madison); James Madison, Debate on the Cod

Fishery Bill, 3 Annals of Cong., 362, 386—87 (1792);

Thomas Jefferson, Opinion on the Constitutionality

of the National Bank (1791), reprinted in THOMAS

JEFFERSON: WRITINGS, at 416, 418 (Merrill D.

Peterson, ed., 1984). Madison reasoned that both the

12

text of the Constitution and the policy behind

enumerating Congress’ powers’ supported this

interpretation:

If the terms [general Welfare] be taken in the

brcad sense they maintain, the particular

powers afterwards so carefully and distinctly

enumerated would be without any meaning,

and must go for nothing. It would be absurd

to say, first, that Congress may do what they

please, and then that they may do this or that

particular thing .... In fact, the meaning of

the general terms in question must either be

sought in the subsequent enumeration which

limits and details them, or they convert the

Government from one limited, as hitherto

supposed, to the enumerated powers, into a

Government without any limits at all.

3 Annals of Cong. at 386-87 (1792). He and

Jefferson both understood the danger of interpreting

the Spending Clause in a manner that would give

Congress unbridled discretion. “Such a view of the

Constitution,” wrote Madison, “would have the effect

of giving to Congress a general power of legislation,

instead of the defined and limited one hitherto

understood to belong to them.” 30 Annals of Cong.

212 (1817).

Jefferson likewise demonstrated his conviction

that “general Welfare” was lmited to Congress’

enumerated powers when he_- proposed a

constitutional amendment in his 1806 State of the

Union Address that would permit surplus federal

funds to be used for “public education, roads, rivers,

canals, and such other’ objects of public

improvement.” Thomas Jefferson, Sixth Annual

Message, reprinted in WRITINGS, at 524, 529-530.

Jefferson reasoned that Congress could not

undertake these public works projects’ before

amending the Constitution “because the objects now

recommended are not among those enumerated in

the Constitution, and to which it permits the public

monies to be applied.” Jd., at 530. This episode

reveals the degree to which our elected officials

recognized constitutional limits on Congress’

spending power at the beginning of the nineteenth

century, and illustrates the incredible extent to

which Congress has ignored those limits since.

Even those who disagreed with Jefferson and

Madison’s view conceded that the “general Welfare”

language itself limited Congress’ spending power.

Most notably, even Alexander Hamilton, who

believed that the Spending Clause broadly conferred

cn Congress authority that was distinct from the

other enumerated powers in Article I, Section 8,

acknowledged that “general Welfare” limited

Congress so that “the object to which an

appropriation of money is to be made be General and

not local.” Alexander Hamilton, Report on

Manufactures (1791), reprinted in 2 THE FOUNDERS’

CONSTITUTION, at 446-47. Even the most robust

federalist would not have accepted a spending power

without limits.

Presidents after Jefferson and Madison continued

to view Congress’ spending power as limited even

while disagreeing about the precise extent of its

limits. Monroe agreed with Hamilton’s interpreta

tion of the Clause, but nonetheless vetoed as uncon-

stitutional a bill to repair the Cumberland road

14

because Congress’ power to spend was restricted “to

purposes of common defence, and of general, not

local, national, not State benefit.” 39 Annals of

Cong. 1849 (1822). Jackson, by contrast, completely

rejected Hamilton’s position that congressional

spending was not limited by the other enumerated

powers in Article I, Section 8, describing it as a “dan-

gerous doctrine” when he vetoed as unconstitutional

bills appropriating funds for constructing roads and

canals, and for improving navigation on the Wabash

River. 28 H.R. Journal 27, 29 (1834). He believed

that such improvements constituted local improve-

ments rather than improvements for the genera!

welfare. /d., at 32. When vetoing the Wabash River

Act, Jackson warned about the dangers of

“unconstitutional acts,” which “proffer local

advantages, and bring in their train the patronage of

the Government.” J/d., at 28. This early warning on

the dangers of “earmarks” for purely local projects

has proved prescient. Jackson further warned:

To suppose that, because our Government has

been instituted for the benefit of the people, it

must therefore have the power to do whatever

may seem to conduce to the public good, 1s an

error, into which even honest minds are apt to

fall. In yielding themselves to this fallacy,

they overlook the great considerations in

which the federal constitution was founded.

They forget that, in consequence of the

conceded diversities in the interest and

condition of the different States, it was

foreseen, at the period of its adoption, that

although a= particular measure of the

Government might be beneficial and proper in

At

one State, 1t might be the reverse in another

that it was for this reason the States would

not consent to make a grant to the Federal

Government of the general and usual powers

of Government, but of such only as were

specifically enumerated

id.

Presidents Tyler, Polk, Pierce and Buchanan

likewise vetoed bills for “internal improvements’—

those that uniquely benefited particular states or

regions rather than the entire country—as exceeding

Congress’ power under the Spending Clause. See,

e.g., 39 H.R. Journal 1081 (1844); 43 H.R. Journal 82

(1847); 45 S. Journal 361 (1854); 55 H.R. Journal 501

(1859). Polk explained that the Constitution’s

limitation on congressional spending ensured that

local improvements were financed locally, which

promoted efficiency and respected federalism:

|T'}he expenditure being in the hands of those

who are to pay the money and be immediately

benefited, will be more carefully managed and

more productive of good than if the funds were

drawn from the national treasury and

disbursed by the officers of the General

Government; that such a system will carry

with it no enlargement of federal power and

patronage, and leave the States to be the sole

judges of their own wants and interests.

43 H.R. Journal 88 (1847). He also warned that if

Congress spending power were not subject to limits,

“combinations of individual and local interests will

be found strong enough to control legislation, absorb

16

the revenues of the country, and plunge the

yvernment into hopeless indebtedness.” IJd., at 85.

President Bughanan echoed this concern for

preserving the boundary between the national and

state governments when he vetoed as

unconstitutional an act donating public lands to

states for establishing agricultural colleges. James

3uchanan, Veto Message to the House of

Representatives (Feb. 24, 1859), reprinted in 5 A

COMPILATION OF THE MESSAGES AND PAPERS OF THE

PRESIDENTS 1789-1897, at 543. He warned that if

Congress had this authority, it would:

break down the barriers which have been so

carefully constructed in the Constitution to

separate Federal from State authority. We

should then not only “lay and collect taxes,

duties, imposts and excises” for Federal

purposes, but for every State purpose which

Congress might deem expedient or useful.

This would be an actual consolidation of the

Federal and State Governments so iar as the

great taxing and money power is concerned,

and constitute a sort of partnership between

the two in the Treasury of the United States,

equally ruinous to both.

Id., at 547

These presidential assertions, and the historical

episodes they illuminate, confirm that for the first

eighty-five years of our nation’s history, the limits on

Congress’ spending power contained in_ the

Constitution were real and consequential. See

generally, John C. Eastman, Restoring the “General”

to the General Welfare Clause, 4 CHAP. L. REV. 63, 87

17

(2001). The exact confines of that limit were

debated, but most presidents prior to the Civil War

followed Madison’s position that Congress could not

spend beyond its enumerated powers. Kiven

presidents such as Monroe, who rejected this view,

still believed that Congress’ spending power was

limited by the text of the Clause itself, and that

Congress could only spend for purposes that wer:

national, rather than local. 39 Annals of Cong. 1849

(1822).

That “general Welfare” limits Congress’ Spending

Clause power to national, as opposed to local

matters, whether that restriction is confined to the

clause itself or to the litany of other enumerated

powers, 1s the only reading of the text that comports

with the doctrine of enumerated powers and limited

government. Both doctrines were essential in

drafting a Constitution that was acceptable to the

states, and necessary to ratification. The Framers

sought to create a national government’ with

sufficient power to combat the weaknesses of the

Articles of Confederation, but lacking the potential

to threaten state sovereignty over’ traditional

governmental functions. See, e.g., THE FEDERALIST

No. 45 (James Madison).

Accordingly, Roger Sherman, a delegate to the

Constitutional Convention of 1787, proposed that

Congress should have power to legislate “in all cases

which may concern the common interests of the

Union: but not to interfere with the government of

the individual States in any matters of internal

police which respect the government of the States

only, and wherein the general welfare of the United

States 1s not concerned.” 2 ‘THE RECORDS OF THE

FEDERAL CONVENTION 21 (Max Farrand, ed., 1911);

see also, id., Proposal of Gunning Bedford (giving to

Congress the power “to legislate in all cases for the

general interests of the Union, and also in those to

which the States are separately incompetent’)

During the Convention, the Committee of Detail

considered Sherman’s proposal, and others like it,

and developed a list of enumerated powers that

eventually became Article I, Section 8—powers

designed to further the common interests or general

welfare of the nation without interfering

unnecessarily with the internal police powers of the

states. Thus, the limitations implicit in the very

idea of the enumerated powers doctrine paralleled

the “general Welfare” limitation in the Spending

Clause.

As this history illustrates, Congress may only

spend money for national, rather than local purpose

and it may not interfere with the internal, core

governmental functions of the states. One of these

core functions 1s the police power, which has always

been considered a fundamental aspect of state

sovereignty Morrison, 529 U.S., at 618 The

funding of state prisons is inherently local spending

because state prisons house those individuals who

have committed crimes against the people of the

State, as defined by the Legislature of the State—a

fact that this Court has previously recognized. See,

e.g., Preiser v. Rodrigeuz, 411 U.S. 475, 491-92

(1973) (“it is difficult to umagine an activity in which

a State has a stronger interest, or one that is more

intricately bound up with state Jaws, regulations,

and procedures, than the administration of its

pris ns’).

Because RLUIPA is based on spending that

a purely local rather than national purpose, and

therefore exceeds Congress powe! inder the

‘ ae ci 11 a ee 1 4

OVEMULILE Wlause a Witpiliasasy ALAC SS Wy

. ‘ ‘ " . , : . >

presents a perlect opportunity for this Court t

address whether the limits it has recently reaffirmed

with respect to the Commerce Claus« appt eq ial]

to the Spending Clause

B. Existing Precedent of this Court

Confirms the General Welfare Limit on

Congress’ Spending Power.

This Court’s two most recent cases construing th

Spending Clause, Butler and Dole, confirm that

general Welfare” remains a limitation on Congress

spending power. In Butler, this Court overturned a

unconstitutional the Agricultural Adjustment Act of

1933—a national, New Deal program that paid

subsidies to farmers who agreed to reduce their crop

production—because “The Act invade[d] the reserved

rights of the states.” 297 U.S., at 68. In its opinior

the Court sketched the outlines of the Spending

Clause and discussed the debate between Madisor

and Hamilton about what should be its proper scope

Id., at 65-67. The Court concluded that Hamilton

view was correct and that: “While, therefore, the

power to tax 1s not unlimited, its confines are set u

the clause which confers it, and not in those of

section 8 which bestow and define the legislati

powers of the Congress.” Jd., at 66

lhe Court then discussed the limits on Congres

power, which it deemed were important becauss

“The Constitution was, from it verv origin

contemplated CO be tne Irame yT j nationa

‘5

ZU

government, of special and enumerated powers, and

not of general and unlimited powers.” Jd., at 66

(quoting Chief Justice Story). Citing Hamilton’s

assertion that the spending power must be used for

“general, and not local” purposes, the Court

concluded that Congress’ “powers of taxation and

appropriation extend only to matters of national, as

distinguished from local, welfare.” Jd., at 67. Thus,

while Butler accepted the broader view of the

Spending Clause espoused by Hamilton instead of

that held by Madison, it nonetheless recognized a

significant limit on the extent of that power,

commensurate with the historical understanding of

“general Welfare” and of the fedcralism-bascd

purpose for hmiting the national spending power.

Fifty years later, in Dole, this Court considered a

challenge to a federal statute that required states to

raise their legal drinking age to twenty-one years, or

else forfeit a percentage of federal highway funding.

The Court found that Congress may, pursuant to its

Spending Clause power, “attach conditions on the

receipt of federal funds” provided that it satisfies five

requirements. Dole, 4838 U.S., at 206-212 (the

spending scheme must be “in pursuit of the general

welfare’; Congress may only condition funds

“unambiguously” so that states may freely decide

whether to accept them; the condition must be

related “to the federal interest in particular national

projects or programs’: it may not violate any other

constitutional provisions; and it must not rise to the

level of coercion).

.

The opinion specifically affirmed Butler for the

first of these requirements, namely, that “the

exercise of the spending power must be in pursuit of

2 |

the general welfare.” Dole, 483 U.S., at 207. The

Court’s assertion that courts should defer to

Congress’ judgment about “whether a _ particular

expenditure is intended to serve general public

purposes,’ does not nullify the requirement that

spending must be general—that is, for national,

rather than local purposes. Jd. In fact, the Dole

Court cited Helvering v. Davis, 301 U.S. 619, 640

(1937), a case in which this Court recognized that

“(t]he line must still be drawn between one welfare

and another, between particular and general.” The

Court largely deferred to Congress to determine

whether a program advanced the “welfare” of the

nation (i.e., whether the program was “wise’”). Jd., at

640. However, the Court still reviewed the spending

program to ensure that the exercise of power was not

arbitrary and that the program at issue was

“national” rather than local. /d., at 640-45.

Read together, Butler: and Dole affirm that

“general welfare” is a limit on Congress’ spending

power. However, as the opinion below reveals, it is 4

limit not honored by Congress and not enforced by

the lower courts, undoubtedly because the lower

courts have misread the deference this Court zave to

Congress as applicable not just to the “welfare”

determination but to the “general” limitation as well.

The Eighth Cuircuit’s conclusory assertion that

RLUIPA is a valid exercise of Congress’ spending

power ignores this critical distinction, for example,

even to the point of omitting the “general” limitation

in its description of the deference due Congress

under the spending power. 581 F.3d, at 650 (Pet.

App. 16a-17a) (“As a general matter, ‘the concept of

22

welfare or the opposite is shaped by Congress’ in the

first instance” (citing Dole, 483 U.S. at 208)).

A similar error 1s made by each of the other

circuits that have addressed the issue. See Madison

v. Virginia, 474 F.3d 118, 125 (4th Cir. 2006) (“In

considering whether a particular expenditure is

intended to serve general public purposes, courts

should defer substantially to the judgment of

Congress” (quoting Dole, 483 U.S., at 207)); Cutter v.

Wilkinson, 423 F.3d 579, 585 (6th Cir. 2005)

(“Heeding the Supreme Court's instruction to ‘defer

substantially to Congress’ legislative judgment, we

agree with our sister circuits that RLUIPA furthers

the general welfare”), reud on other grounds, 544

U.S. 709 (2005); Charles v. Verhagen, 348 F.3d 601,

607 (7th Cir. 2003) (“Given the Supreme Court’s

directive to defer substantially to Congress’

judgment, we agree with the Ninth Circuit that

RLUIPA’s attempt to protect prisoners’ religious

rights and to promote the rehabilitation of prisoners

falls squarely within Congress’ pursuit of the general

welfare under its Spending Clause authority”);

Mayweathers v. Newland, 314 F.3d 1062, 1066 (9th

Cir. 2002) (noting that “federal courts must ‘defer

substantially’ to Congress in determining if a statute

advances the general welfare,” and further, that

“protecting religious worship in institutions from

substantial and illegitimate burdens does promote

the general welfare”), cert. denied, 540 U.S. 815

(2003); cf. Benning v. Georgia, 391 F.3d 1299, 1305

(llth Cir. 2004) (“Georgia does not dispute that

RLUIPA serves the general welfare’).

In none of these cases have the courts focused on

the distinction between national and local. critical to

this Court’s decision in Butler and re-affirmed in

Dole.

Where, as here, the only spending involved is for

local prisons, the critical question is whether the

federal spending qualifies as “general” rather than

merely local welfare. Without complying with that

Spending Clause limitation, the conditions Congress

seeks to impose via its local spending largess simply

cannot be sustained, particularly when they intrude

upon core police powers of the states dealing with

crime and punishment — quintessential examples of

the sovereign police power retained by the states.

See Morrison, 529 U.S., at 618.

Certiorari 1s warranted so that this Court can

make clear that the lower courts may not simply

defer to Congress’ assertion that RLUIPA satisfies

the general welfare requirement because it seeks to

correct a perceived social wrong. Abject deference is

unwarranted because Congress has overstepped the

line demarcating the national from the local. To

allow the lower court holdings to the contrary would,

as with the claims of unlimited Commerce Clause

authority rejected in Lopez, “convert congressional

authority ... to a general police power of the sort

retained by the States.” 514 U.S., at 567.

CONCLUSION

RLUIPA is an unconstitutional exercise of

Congress Spending Clause power. The Constitution

only allows Congress to spend for the “general

Welfare,” which the framers’ understanding, history

and this Court’s precedent all reveal to mean

24

national welfare, as opposed to state or local welfare.

The operation of state prisons is an inherently local

matter and one that is fundamental to the core func-

tiors of state government. Allowing the federal

government to regulate state prisons, by means of its

spending power, intrudes on state sovereignty and

upsets the balance of power between state and local

government.

In addition, the lack of a robust, judicially-

enforced “general welfare” limitation on the spending

power has fuelled the pork-barrel system of

legislation that prevails in federal politics. State

representatives, eager to ingratiate themselves to

their constituents, vie for federal funds to benefit

their states, and promises of earmarked funds for

particular states are used as bargaining chips to gain

majority support for bills. This phenomenon recently

made headlines when Senator Ben Nelson of

Nebraska cast the deciding vote in favor of health

care reform, after the bills authors exempted

Nebraska from having to pay for the proposed

expansion of Medicaid. See, Monica Davey, Senator

Nelson Defends His Health Care Vote, New York

Times A13 (Dec. 31, 2009). Finally, the absence of a

meaningful “general welfare” limit on Congress’

Spending power has arguably undermined elected

officials’ ability to act in furtherance of the actual

veneral welfare. President Polk, writing in 1847,

recognized this problem and issued a_ prophetic

warning:

But a greater practical evil would be found in

the art and industry by which appropriations

would be sought and obtained. The most

artful and industrious [politicians] would be

95

the most successful; the true interests of the

country would be lost sight of in an annual

scramble for the contents of the treasury; and

the member of Congress who could procure the

largest appropriations to be expended in his

district would claim the reward of victory from

his enriched constituents. The necessary

consequence would be sectional discontents

and heart-burnings, increased taxation, and a

national debt, never to be extinguished.

43 H.R. Journal 87 (1847). The ramifications of the

Spending Clause power clearly extend beyond the

provisions of RLUIPA at issue here and go to the

heart of Congressional power in our federal system.

For these reasons, the Court should grant the

cross-petition for writ of certiorari and use this case

as an opportunity to address the scope of Congress’

Spending Clause power.

Respectfully submitted,

James E. Moore John C. Eastman

Woops, FULLER, Counsel of Record

SHULTZ & SMITH 840 FE. 37th Street

300 S. Phillips Ave. Long Beach, CA 90807

P.O. Box 5027 (562) 426-1934

Sioux Falls, SD 57117

(605) 978-0613

Counsel for Cross-Petitioners