The problem with all that, Ehrlich told Humetewa, starts with the fact that there has yet to be a ruling that the state broke the law. And without some actual harm, he said, there’s no basis for her to even consider the state’s claim that the restriction is unconstitutional.
“Arizona does nothing more than guess about how it might be injured,” he wrote.
And even if a violation is found, Ehrlich said, Congress has an absolute right to put conditions on federal grants.
Ensign starts with the premise that the provision is unconstitutional. He said what will trigger a refund demand is “ambiguous,” leaving states with no clear guidance.
He also called the grants “insidious and coercive,” amounting to close to 10% of the state budget. That, Ensign said, effectively made it impossible for Arizona to refuse to accept the cash in the first place, even with the conditions.
“The harm here is that the state’s policymaking apparatus is being commandeered, which happens as long as the state is coerced to enter the program,” he wrote. “Even if the state never cut taxes and wholly complied with the mandate, if it did so because of coercion, this would still violate the values inherent in dual sovereignty.”
Ehrlich did not dispute that there are limits on the authority of Congress over the states.