Thomas, J., dissenting
State could not be injured because the Act was not a direct legal regulation. Rather, it was a mere offer to bargain—it “imposed” no “burden … upon the States” and did not require them “to do or to yield anything” of its own force. Id., at 482. The State could not seek judicial redress because the contractual nature of the Act’s provisions meant that States could vindicate their own rights “by the simple expedient of not yielding.” Ibid.; see also Corwin, 36 Harv. L. Rev., at 579 (noting that the Maternity Act adhered to the traditional requirements of state consent and the “general caveat against jurisdictional rights following in the wake of appropriations”). “[T]he Justices in Mellon understood that Congress’ power to spend money is not a legislative power.” Engdahl, 52 S. D. L. Rev., at 498 (emphasis in original).
Cases involving New Deal spending programs teach the same lesson. For example, United States v. Butler, 297 U. S. 1 (1936), concerned the constitutionality of the Agricultural Adjustment Act, which offered subsidies to farmers not to sell crops. The Government defended the Act on the ground that it did not regulate any private or state party. Instead, “[a]ny commands or restrictions in the Act [were] imposed only upon the use by [federal] administrative officials of the money granted.” Brief for United States in United States v. Butler, O. T. 1935, No. 401, p. 264. In line with the traditional distinction between mere spending and regulatory commands, the Government urged that “Congress ha[d] not gone beyond its power of authorizing an expenditure” precisely because “[i]t ha[d] not sought to force or command citizens to receive the money offered and to perform the conditions upon which the funds are to be disbursed.” Id., at 265. The Government expressly relied on the contractual nature of the Act’s conditions, as distinct from any “exercise of sovereign regulation”:
“It would be most unusual to suppose that a contract
