Teleconference with Governor Rick Perry

At noon of March 27, 2012, Texas Governor Rick Perry held a telephone conference with several prominent Texas bloggers, among them Jon Roland, whose most noted blog is Constitution. Seventeen bloggers were invited, although not that many attended. The teleconference was organized by Eliza S. Vielma, Legislative Affairs & New Media Coordinator,  Americans for Prosperity – Texas. The topic of the meeting was the Texas Women's Health Program, which was recently shut down by the Obama Administration, for failure to meet its requirements to receive federal funding.

Roland asked the Governor if he and Attorney General Greg Abbott would support litigation challenging the constitutionality of unfunded mandates and of making federal funds conditional on taking actions Congress does not have the constitutional authority to mandate. Perry said he liked the idea and would discuss it with Abbott when he returns from Washington, DC, where he is a party to litigation challenging the Affordable Care Act, on which oral arguments are being held.

A constitutional amendment that addresses the abuses of unfunded mandates and the spending power of Congress is to be found here and here. It states:

Unfunded mandates, abuse of spending power

Congress may not require any state or local official, or private person, of the United States of America, to expend any resources without providing such resources, or make the provision of resources conditional on performing actions Congress does not have the power to command, except for militia organization, training, and operations, or for specific performance on a voluntary contract.

There is already a U.S. Supreme Court precedent declaring an unfunded mandate unconstitutional, Printz v. United States, 521 U.S. 898 (1997). However, there has never been a comprehensive facial challenge to the abuses of the spending power of Congress used to induce behavior it does not otherwise have power to command. A suit to do that, if successful, would make the amendment unnecessary, and if not, would build public support for its adoption.