. 2020 Jul 21;98(3):775–801. doi: 10.1111/1468-0009.12461

Table 2.

Federal Powers Under Which Congress Could Create a National Retail‐Based Fruit and Vegetable Subsidy Program

Federal Power	Legal Authorities and Constraints	Applicability to National F&V Subsidy	Policy Implications	Additional Considerations for Implementation
Commerce Clause Congress shall have the power “to regulate commerce … among the several states, and with the Indian tribes.”	The Commerce Clause gives Congress the power to directly regulate existing interstate activity and to license and regulate existing interstate activity. This does not include the power to compel commercial activity. Interstate is interpreted broadly to reach local activity that would have a substantial impact on interstate commerce.	Congress can directly regulate or license food retailers, condition the license on compliance with an F&V federal program, and provide states and localities the opportunity to administer or co‐regulate retailers directly under the program. Congress cannot compel retailers to sell F&Vs or states, localities, or NGOs to administer a national F&V program.	Using the commerce power is feasible for a mandatory program. A possible policy option would be for Congress to regulate and license interstate food retailers, condition the license on compliance with an F&V federal program, and provide states the opportunity to administer the program.	It would likely be challenging for the federal government to oversee compliance based on the large number of retailers, so Congress would need to create or designate a federal agency to oversee the program and administer it in states that do not administer it themselves.
Power to Tax “Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises”	Congress can impose taxes to generate revenue and regulate activity and Congress can tax inactivity. Congress can also issue federal licenses, for which the licensee has to pay a fee, as part of its taxing power. Congress can provide tax incentives to encourage behavior.	Congress can tax nonadherence to a national program. Congress can license (for a fee) all retailers and require they abide by program requirements as a condition of the license. Congress can grant tax incentives to retailers to induce participation in a national program (which functions like a spending program).	There are both mandatory and voluntary strategies possible using the taxing authority. Taxing nonadherence with a federal program (mandatory) would be politically unpopular and could hurt certain retailers. Providing tax incentives (voluntary) and licensing retailers through the taxing authority for a fee (mandatory) are both possible strategies.	The tax system does not provide the government proper control over effectuating and evaluating the policy goals of a program. If used, a new taxing bureau or expansion of the Alcohol and Tobacco Tax and Trade Bureau would be recommended to oversee policy objectives.
Power to Spend Congress shall have the power “to pay the Debts and provide for the … general Welfare of the United States”	Congress may spend money to further federal objectives. Congress routinely conditions federal funding on an agreement that the recipient use the funds according to federal requirements. There are four such funding mechanisms: project grants, block grants, direct spending programs, and categorical grants. Conditional funding must meet the following requirements to be considered constitutional: (1) the program provides for the general welfare of the United States; (2) Congress sets forth the conditions unambiguously so recipients can exercise their choice knowingly; (3) the conditions are related to a federal interest in national projects or programs; (4) the condition does not violate the Constitution.	Direct spending and categorical formula grants can be used to incentivize compliance with a voluntary national program; block grants offer too little control and project grants are too limited (eg, in time and amount).	A conditional funding strategy is a viable policy option for a voluntary program. The federal government would provide funding to states, local governments, and/or nongovernmental organizations to effectuate and administer the policy.	Using the spending power is the most politically and administratively feasible method to effectuate a national retail F&V subsidy program.

Federal Power

Legal Authorities and Constraints

Applicability to National F&V Subsidy

Policy Implications

Additional Considerations for Implementation

Commerce Clause Congress shall have the power “to regulate commerce … among the several states, and with the Indian tribes.”

The Commerce Clause gives Congress the power to directly regulate existing interstate activity and to license and regulate existing interstate activity. This does not include the power to compel commercial activity.

Interstate is interpreted broadly to reach local activity that would have a substantial impact on interstate commerce.

Congress can directly regulate or license food retailers, condition the license on compliance with an F&V federal program, and provide states and localities the opportunity to administer or co‐regulate retailers directly under the program. Congress cannot compel retailers to sell F&Vs or states, localities, or NGOs to administer a national F&V program.

Using the commerce power is feasible for a mandatory program. A possible policy option would be for Congress to regulate and license interstate food retailers, condition the license on compliance with an F&V federal program, and provide states the opportunity to administer the program.

It would likely be challenging for the federal government to oversee compliance based on the large number of retailers, so Congress would need to create or designate a federal agency to oversee the program and administer it in states that do not administer it themselves.

Power to Tax

“Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises”

Congress can impose taxes to generate revenue and regulate activity and Congress can tax inactivity. Congress can also issue federal licenses, for which the licensee has to pay a fee, as part of its taxing power. Congress can provide tax incentives to encourage behavior.

Congress can tax nonadherence to a national program. Congress can license (for a fee) all retailers and require they abide by program requirements as a condition of the license. Congress can grant tax incentives to retailers to induce participation in a national program (which functions like a spending program).

There are both mandatory and voluntary strategies possible using the taxing authority. Taxing nonadherence with a federal program (mandatory) would be politically unpopular and could hurt certain retailers. Providing tax incentives (voluntary) and licensing retailers through the taxing authority for a fee (mandatory) are both possible strategies.

The tax system does not provide the government proper control over effectuating and evaluating the policy goals of a program. If used, a new taxing bureau or expansion of the Alcohol and Tobacco Tax and Trade Bureau would be recommended to oversee policy objectives.

Power to Spend

Congress shall have the power “to pay the Debts and provide for the … general Welfare of the United States”

Congress may spend money to further federal objectives. Congress routinely conditions federal funding on an agreement that the recipient use the funds according to federal requirements. There are four such funding mechanisms: project grants, block grants, direct spending programs, and categorical grants. Conditional funding must meet the following requirements to be considered constitutional: (1) the program provides for the general welfare of the United States; (2) Congress sets forth the conditions unambiguously so recipients can exercise their choice knowingly; (3) the conditions are related to a federal interest in national projects or programs; (4) the condition does not violate the Constitution.

Direct spending and categorical formula grants can be used to incentivize compliance with a voluntary national program; block grants offer too little control and project grants are too limited (eg, in time and amount).

A conditional funding strategy is a viable policy option for a voluntary program. The federal government would provide funding to states, local governments, and/or nongovernmental organizations to effectuate and administer the policy.

Using the spending power is the most politically and administratively feasible method to effectuate a national retail F&V subsidy program.