Under Article I, Section 8, Clause 1 of the Constitution, Congress is granted the power to lay and collect taxes in order "to pay the Debts and provide for the common Defense and General Welfare of the United States." As required by United States v. Butler, 297 U.S. 1 (1936), Congress must exercise its power to tax and spend for the "general welfare". Through use of its spending power, Congress is able to place a requirement on states that compliance with specified conditions must take place before the state will be considered to meet the qualification requirement for federal funds. Under a test provided in South Dakota v. Dole, 483 U.S. 203 (1987), for Congress to place a condition on receipt of federal funds by a state, the spending has to serve the general welfare, the condition placed on the state must be unambiguous, the condition has to relate to the particular federal program, unconstitutional action cannot be a contingency of receipt of the funds, and the amount in question cannot be so great that it can be considered coercive to the state's acceptance of the condition. See Congressional power.
The Spending Clause authorizes Congress to raise taxes and spend money “to pay the Debts and provide for the common Defence and the general Welfare of the United States.” These words cannot possibly justify the modern doctrine that the term “general welfare” authorizes Congress to spend money for virtually any purpose it wants. If, as the Supreme Court has held since the 1930s, the General Welfare Clause gives Congress the power to spend for almost any purpose it considers beneficial, there would have been no need to give it the authority to spend for “the common Defence” or to pay federal debts. Both purposes are obviously beneficial to the Nation. And both are rendered superfluous by the modern interpretation of “general welfare.” The modern approach runs counter to the original meaning of the Constitution, as well as the text. It makes a mockery of the Federalists’ repeated assurances that the Constitution sets strict limits on federal power, including the power to spend. In The Federalist No. 41, for example, James Madison emphasized that the phrase “general welfare” was limited by the enumeration of other powers of Congress, and did not give it “a power to legislate in all cases whatsoever.” Even Alexander Hamilton’s broader construction of the Clause, which held that it authorized spending for all objects that are “general, and not local; . . . and not being confined to a particular spot,” falls well short of the modern approach. Grants to specific state and local governments are, almost by definition, confined to a “particular spot.” In any event, however, Hamilton’s theory is itself flawed, because it too tends to make the power to spend for defense and debt payments redundant, especially the latter. Such spending is almost always “general” in his sense of the term. Defenders of the modern approach to the spending power usually focus on pragmatic “living constitution” considerations, rather than text and original meaning. They claim that a virtually unlimited spending power is necessary for effective policymaking in the modern world. Even if we assume that it is proper for courts to consider such policy considerations, they are dubious on their own terms. Unconstrained federal spending since the 1930s has caused considerable harm. Federal subsidies for local pork barrel projects, such as the notorious “bridge to nowhere,” have wasted resources and skewed public works priorities. Federal grants to state governments and interest groups have often created and enforced cartels that harm consumers, especially the poor. For example, the Agricultural Adjustment Acts of 1935 and 1938— which led to Supreme Court decisions vastly expanding the scope of congressional power—paid farmers to artificially reduce production. This increased the price of food during the Great Depression, at a time when millions of Americans were already having great difficulty making ends meet, or even suffering from malnutrition. Federal farm subsidies and associated production restrictions continue to inflate the price of food to this day, disproportionately harming the poor in the process. The growth of massive entitlement programs poses a severe threat to our fiscal future, often subsidizing the relatively affluent at the expense of the relatively poor. Advocates of unconstrained spending power contend that it is necessary to prevent collective action problems among the states, enabling them to cooperate in situations where they would otherwise find it impossible. But such power also routinely creates dangerous collective action problems, benefiting powerful special interests at the expense of the less well-organized general public. Individual states acting on their own could never have established nationwide agricultural cartels that fleece consumers. Where genuine interstate collective action problems exist, they can usually be addressed without giving Congress a blank check to spend for whatever purposes it wants. The widespread use of federal grants to state governments undermines beneficial diversity and competition between state and local governments, which also often helps the poor and oppressed. States and localities that can rely on the federal government for funds have less incentive to innovate and to adopt policies attractive to people “voting with their feet.” In a nation as large, diverse, and complex as the modern United States, federally imposed standardization of policy—facilitated by conditional spending grants—is often harmful. Indeed, this is more true today than at the time of the Founding, when the nation was smaller and less diverse, and government policy much simpler. In this respect, a pragmatic “living Constitution” approach to constitutional interpretation argues for tightening constitutional limits on federal power, rather than loosening them. In some instances, states have refused to accept ill-conceived conditional spending grants. But the vast majority of the time, state governments find it hard to resist the temptation of federal funds, especially if they are being taxed to provide similar grants to other states that compete with them. In many cases, widespread voter ignorance makes it hard for the electorate to monitor these complex programs.
This essay is part of a discussion about the Spending Clause with Samuel R. Bagenstos, Frank G. Millard Professor of Law, University of Michigan Law School. Read the full discussion here. Even most originalists recognize that the Supreme Court cannot and should not strike down all federal programs that go beyond the text and original meaning of the Spending Clause. Some, most notably Social Security and Medicare, are too well-entrenched to be reversed by judicial action alone. Moreover, it would be unjust to suddenly pull the rug out from under the many people who rely on them. But the Court can still take incremental steps in the direction of enforcing constitutional limits on federal power. For example, it can hold new unconstitutional programs to a higher level of scrutiny than existing well-established ones, on which many people rely. Such a distinction is already implicit in the Court’s ruling in NFIB v. Sebelius (2012), where the Justices invalidated a key part of the Affordable Care Act in part because it was a massive step beyond the existing Medicaid program. It can also strike down at least some of the many blatant cases of special-interest spending that go beyond even the Hamiltonian position. Enforcement of a tighter conception of “general welfare” is not only practical; it is easier for judges to do than administration of the Court’s current approach to federal grants to state governments, which requires extraordinarily difficult determinations about whether a particular grant condition is “coercive” or insufficiently clear. Unlike “coercion,” the phrase “general welfare” is actually in the Constitution, and can be analyzed using conventional methods of legal interpretation. From the standpoint of both originalism and pragmatic living constitutionalism, the Court’s Spending Clause jurisprudence is badly flawed. Fortunately, perpetuation of the status quo and complete judicial reversal of the modern approach are not the only two options available. We can and must get beyond this false choice. Further Reading: Ilya Somin, Federalism and Collective Action, JOTWELL (June 20, 2011). Ilya Somin, Foot Voting, Federalism, and Political Freedom, Nomos: Federalism and Subsidiarity (2014). Ilya Somin, Voting With Your Feet Works for the Poor, Too, The Volokh Conspiracy (Oct. 26, 2013). Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter (Stanford University Press, 2nd. ed. 2016). Ilya Somin, Closing the Pandora’s Box of Federalism: The Case for Judicial Restriction of Federal Subsidies to State Governments, 90 Georgetown Law Journal 461 (2002). John Eastman, Restoring the “General” to the General Welfare Clause, 4 Chapman Law Review 63 (2001). |
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