During arguments in Virginia Office for Protection and Advocacy v. Stewart, Justice Alito challenged the United States on the scope of power under the spending clause, and specifically inquired how radically the federal government force a state to change its structure and government:

JUSTICE ALITO: Do you think — do you think the Spending Clause allows the Federal Government to condition the receipt of Federal funds on a State’s 2 agreement to change the structure of State government? 3

MS. ANDERS: I think it does, so long as 4 that requirement is reasonably related to the 5 government’s interest in the funds and in — in the 6 objective of its regulation. Now -­ 7

JUSTICE ALITO: Suppose the government said: 8 If you want Medicaid funds, the State agency that 9 administers the Medicaid program must be headed by a 10 person who has a 20-year term of office and is removable 11 only for gross dereliction of duty. Can they do that? 12 Can the Federal government do that? Can Congress do it?

13 MS. ANDERS: I think it could do that, so 14 long as that’s not independently unconstitutional. I 15 think the State always has the opportunity to decide not 16 to opt into the scheme, and I think that’s very 17 important here because the sole aspect of this suit that 18 Virginia challenges, which is the fact that VOPA is a 19 State agency, is the result of two sovereign choices 20 that the State made here.

This is quite a grasp of power by the United States under the spending clause, and maybe stretches the limits of South Dakota v. Dole. Perhaps the Federal Government could accomplish such a radical change under the Republican Government Guarantee Clause, but the spending clause? I don’t know.

Justice Scalia asked a similar question of Petitioner:

JUSTICE SCALIA: Okay. Well, if it were, 9 and if Congress offered money to the State and the only 10 way the State could get it would be to abandon its 11 system of separation of powers and to allow an agency of 12 the State which would normally be under the direction of 13 the governor to go riding off on its own and — and sue 14 the governor, do you think there wouldn’t be any — any 15 problem about — about the Federal Government doing 16 that? 17 MR. GALANTER: I -­ 18 JUSTICE SCALIA: Requiring the State to in 19 effect alter its — its governmental structure in order 20 to obtain the Federal money?

Chief Justice Roberts also probed the extent to which VOPA officials are truly “independent,” and whether the Governor of a state has the power to remove:

JUSTICE GINSBURG: Doesn’t the Federal statute say: Virginia, if you want to do this through a State agency, that State agency has to be an independent agency and have the authority to -­

MS. ANDERS: Yes, that’s correct.

CHIEF JUSTICE ROBERTS: Are you sure that the governor cannot remove the members of VOPA? I know it says VOPA has to be independent of any State agency and the governor appoints one-third. Can the governor 2 remove the members of this Virginia agency?

…

CHIEF JUSTICE ROBERTS: What if the VOPA 25 officials are engaged in corruption or illegal conduct 1 or, you know, extracurricular activity that brings 2 discredit upon the — the governor has no power to say 3 that, you are a Virginia official and you are — you 4 know, whatever — breaking Virginia law, for example?

Right out of the gate, Justice Scalia challenged the Commonwealth over this point, and argued that it was not required to accept the Federal money.

MR. GETCHELL: Mr. Chief Justice, and may it

please the Court: The dignity interest of a sovereign is

impaired if it is pitted against itself in the courts of another sovereign without its consent. And I would take -­

JUSTICE SCALIA: A dignified sovereign should not agree to the deal.

MR. GETCHELL: Well, let’s -­

JUSTICE SCALIA: I mean, you know, the Commonwealth had the choice. It had two choices, as counsel for the Government said. It could either turn down the money or, if it’s not dignified enough to do that, it could take the money and establish a private organization to do this work instead of a State agency. So what, you know, what complaint do you have here?