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Constitutionality of the “Clyburn workaround amendment

March 30, 2009

SCHotline received the following Memo from Kristie Greco, Communications Director, Office of the Majority Whip just a few moments ago.  Please feel free to share your expertise on what is starting to look like a potential legal battle…


DATE: March 30, 2009

TO: Reporters, Editorial writers

FROM: Kristie Greco, Communications Director, Office of the Majority Whip

RE: Constitutionality of the “Clyburn workaround amendment”

Although much of the debate over accepting federal economic recovery dollars seems to be political in nature, I wanted to provide some facts regarding the constitutionality of the so-called “Clyburn workaround provision,” also known as section 1607 of the American Recovery and Reinvestment Act.

Senator Lindsey Graham made news a few weeks ago by releasing a memo he asked the Congressional Research Service to produce analyzing the language contained in section 1607.  In Senator Graham’s opinion, the provision raised states rights issues with the Tenth Amendment of the U.S. Constitution.  However, CRS concluded that his interpretation was very broad, in fact one that is “disfavored;” the more likely interpretation did not violate the Tenth Amendment.  This conclusion is restated in a new report produced by CRS on March 25, 2009 (report available upon request).

Finally, it’s irrelevant how CRS, Sen. Graham, Rep. Clyburn or South Carolina Attorney General Henry McMaster interprets the impact of a federal law on the U.S. Constitution.  The constitutionality of a law is determined in a court of competent jurisdiction.

For further background and assistance I have attached the language of Section 1607 and the Summary from the 3/25/09 CRS Report.  Let me know if you have further questions.



The American Recovery and Reinvestment Act included a provision which allows State Legislatures by concurrent resolution to draw down federal funding if the governor does not act on the funding within 45 days.  The legislative language states:


(a)    Certification by Governor- Not later than 45 days after the date of enactment of this Act, for funds provided to any State or agency thereof, the Governor of the State shall certify that:

(i)  the State will request and use funds provided by the Act; and

(ii)  the funds will be used to create jobs and promote economic growth.

(b)   Acceptance by State Legislature- 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.

(c)    Distribution- After the adoption of a State legislature’s concurrent resolution, funding to the State will be for distribution to local governments, councils of government, public entities, and public-private entities within the State either by formula or at the State’s discretion.


This report analyzes the language contained in §1607 of the American Recovery and

Reinvestment Act of 2009 (Recovery Act), which provides that federal funds can be made available to a state by the federal government either after certification by a governor that such money will be requested and spent or after the adoption of a concurrent resolution by a state legislature.

Although the language of § 1607 is arguably ambiguous, it does not appear likely that it would have the effect of significantly reallocating power between a state legislature and a state executive branch. Thus, once either a governor’s certification or the legislature’s acceptance has been made, § 1607 would have little or no apparent effect on the power of a governor, state or local official to choose whether or not to seek and administer these funds.

Any interpretation of this language which did provide authority to a state legislature, by concurrent resolution, to direct the acceptance and spending of federal monies by state or local officials, would be likely to raise Tenth Amendment issues. Consequently, such an interpretation would be disfavored.

5 Comments leave one →
  1. March 30, 2009 11:13 PM

    Email Comment:

    I think we need to be more concerned, not about the constitutionality of Clyburn’s amendment, but about the long lasting effects Governor Sanford will have on putting South Carolina further back into the Stone Age.

    I am very concerned that thesupposed “forthrightness” of our governor is nothing more than a ploy, and a sorry one at that, to get him into the limelight so he can run for President. In his dreams.

    It is disheartening that we as South Carolinians are singled out all over the United States as already being backward, but then to have a governor who doesn’t have the sense to get the stimulus money when it is offered. It isn’t like we’re going to escape higher taxes in the future because we don’t take the bailout. We’ll all be paying back this money, whether we get any of it or not. But to have our state show up having 11 of the 25 Worst Schools in America and be on the top of the Unemployment list and some of our cities and areas being the most dangerous to live in. That after all that, we have a backward governor who won’t accept money when it is given freely to his state.

    He doesn’t have the right, and he needs to be out of a job, just like the rest of the state. Unemployment in some areas of the Pee Dee are reaching 20% and the out of touch Governor is going to sell his 3+ million dollar beach house.

    Children are going to school every day in the corridor of shame in a shanty where the ceiling is falling down, the wind blows through the windows and walls, and you can see the ground through the floor, and Governor Sanford’s children have never touched the door of a public school.

    Give me a break!!!! This is ridiculous. He needs to be impeached.

    Timmonsville, SC

  2. ElizabethAnne permalink
    March 31, 2009 12:07 AM

    There is a rally at the state house this week to show support for taking the stimulus money. It is April 1st at 5:30-6:30. SHow up and help keep teachers in the classrooms, cops on the street, and firemen at the ready.

  3. Andy permalink
    March 31, 2009 2:06 PM

    Read Article IV, section IV of the US Constitution. Seems to me that the Feds have ignored the “republican form of government” by “allowing” state legislatures to spend taxpayer money without a law passed by them and signed by the Governor.

    The procedure the SC Legislature should use is to pass a law requesting the money, then override the Governor’s veto — if they can.

    The Feds again are doing another end-run around the US Constitution, in my opinion.

    And our Governor seems to understand that we can’t solve a debt problem with more debt.

  4. David O permalink
    March 31, 2009 4:22 PM

    God Bless Mark Sanford. God help our nation and our state as our failed leaders ask what our country can do for us, not what we can do for our country. Sanford told them to control spending every year since elected. He said pay down the debt and they ignored him. They call themselves public servants, but they are weak, spineless, know nothings that wish to nurse at the breast of Uncle Osama.

    I am sure Hugo Chavez agrees with you stimulus hawks.

  5. mijeel permalink
    March 31, 2009 6:32 PM

    According to the memorandum, the CRS report concludes that “…such an interpretation would be disfavored.” Disfavored by whom? Those who have never read the Constitution?

    A cursory reading of the both the Constitution and section 1607 of the American Recovery and Reinvestment Act results in the interpretation of disharmony between the two. When you put plain language translations of both items side by side the ARRA is entirely unconstitutional – including section 1607.

    We have too many lawyers with too little common sense involved in writing legislation.

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