Thomas, J., dissenting
Justice Joseph Story’s Commentaries on the Constitution also recognized that the spending power did not carry with it any auxiliary power to bind individuals or States. Citing Monroe’s Views liberally, Story agreed that Congress could not enact a system of internal improvements under the General Welfare Clause. Although he located the spending power in that Clause, Story understood that the power was confined “to mere appropriations of money,” and that, as a result, the Federal Government could not regulate internal improvements except pursuant to its legislative “enumerated powers.” 3 Commentaries on the Constitution of the United States, §1269, p. 150 (1833); see also Sky 224 (“[A]s read by Story, the General Welfare Clause did not constitute a regulatory power, independent of the spending power, authorizing Congress to enact whatever measures it wished … under an unlimited power to legislate for the general welfare of the United States”).
Although disagreement on whether Congress could spend for purposes beyond the enumerated powers persisted through the Antebellum and Reconstruction eras, the understanding that the spending power did not imply regulatory power persisted. See generally Sky 232–240, 270–291. Because Congress was acting solely under its power to spend, it relied on the States’ acceptance of terms and upon the States’ legislative powers to carry out federal spending programs.
D
Given this consensus, it is not surprising that the first federal grant-in-aid spending programs were contractual in nature. The Morrill Act of 1862, perhaps the first such program, extended an offer to the States to accept donations of federal lands on the condition that the State use the land to establish a college. 12 Stat. 504–505. States had two years to accept the federal terms in the form of an Act by the
