Most defenses of the constitutionality of the health insurance mandate rely on Congress’ powers under the Commerce Clause, an approach I criticized here. Some, however, also claim that Congress has the power to enact it under the Tax and Spending Clause (e.g. – Jack Balkin), which gives Congress the power to To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” There are two problems with this argument: the health care mandate is not a tax, and it does not promote the general welfare.
The so-called “tax” in the proposed health insurance mandate is really just a penalty for failing to comply with the requirement to purchase health insurance. It is even referred to as a “penalty” in some versions of the bill. If any regulatory measure with a monetary penalty for refusal to comply is considered a tax, then many of Congress’ other powers under Article I of the Constitution would be superfluous, since Congress could essentially regulate anything that fell within the subject matter of this clause simply by imposing money penalties on those who fail to comply, coupled with prison sentences for those who refuse to pay the money. For example, the Spending Clause gives Congress the power to tax in order to “provide for the common Defence.” Yet elsewhere in Article I Congress is also given the power to “raise and support armies” and to regulate the land and naval forces. Even more importantly, a financial penalty for failure to obey the law is not seen as a “tax” in ordinary language either today, or at the time of the Founding. The text and original meaning of the Constitution therefore cut against the view that the health insurance mandate is a tax.
Even if the mandate does count as a tax, it still can’t be justified under the Tax and Spending Clause because it does not pay the national debt, provide for the common defense, or promote the general welfare of the nation. It’s pretty obvious that the mandate doesn’t fall within the first two of these categories. It can only be defended by arguing that it promotes the “general Welfare.” In cases such as South Dakota v. Dole, the Supreme Court has defined “general welfare” as more or less anything Congress says it means. This is badly mistaken for several reasons. The most important problem is that it renders the rest of the Spending Clause itself superfluous. If the General Welfare Clause gives Congress the power to tax and spend for any purposes it likes, surely that includes the power to do so for purposes of providing for “the common defence” and paying the national debt. After all, Congress could surely have a plausible belief that paying the national debt and defense spending promote the general welfare in some sense. Yet these powers are separately enumerated, which implies that the General Welfare Clause must not be interpreted so broadly as to make Congress’ other powers redundant. As James Madison put it in Federalist 41, the broad interpretation of the General Welfare Clause also makes much of the rest of Article I redundant, as well:
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
If the General Welfare Clause doesn’t give Congress the power to spend money on whatever purposes it thinks might be beneficial, what does it mean? In my view, James Madison was roughly correct to argue that the Clause simply gives Congress the power to spend money for purposes of implementing its other powers under Article I (the rest of Article I merely gives Congress the power to promote those objectives through regulatory measures, but not through spending). For a modern defense of that view, see this article by John Eastman. In addition, I think it’s also plausible to argue that the General Welfare Clause gives Congress the power to spend for unenumerated purposes that really do provide universal or nearly universal benefits. The example I like to use when I teach constitutional law is asteroid defense (which may not be covered by the “common defense” section of the Spending Clause, because that provision may refer only to protection against enemies, as opposed to natural phenomena). Whatever its other virtues, the health care mandate certainly doesn’t qualify on this ground, since it clearly imposes net harms on many people, such as those who would prefer not to purchase health insurance, those who don’t wish to purchase coverage as broad as the mandate requires, and others.
Chris Travers says:
Illya:
I may be missing something but I thought the argument against taxation power was:
1) It wasn’t an income tax per se and so fell outside the boundaries of the 16th Amendment and
2) It wasn’t a direct tax covered under the powers provided in article 1.
Is there a reason this doesn’t work?
December 24, 2009, 1:33 pmJohnF says:
Surely Congress could get around your definitional issue with the word “tax” by simply enacting a tax and relieving people of it if they instead buy an insurance policy. (I put aside the question mentioned by Chris, above, whether an outright tax could be made to fit the Constitutional limits of taxation.)
Moreover, the notion that legislation whose purpose is to improve the health of the citizenry is somehow not “to provide for . . . the general welfare” is never going to fly in the courts. Even I have a hard time with that argument, and I think these bills are garbage and will worsen our health. But the Constitutional analysis does not turn on seeing whether the legislative purpose winds up being met or not.
December 24, 2009, 1:34 pmR. Richard Schweitzer says:
Even as a “Tax,” how does this attempt to levy a “fine” avoid the strictures of the Constitutionally specified forms of Levies or taxes?
It certainly does not stand under Art XVI (income).
Being levied In a non-uniform (income based) way and only on a certain class of persons identified by nullity of conduct (refusal to act – doing nothing)it would not meet the test of census proportionality set forth in Art I; Sec. 9, as a capitation or direct tax.
And a “fine” or “penalty” is not an excise – something taken out of the value of a good or transaction.
December 24, 2009, 1:35 pmbyomtov says:
Section 8 describes what Congress may spend on, not what it may tax.
Since we are talking about the constitutionality of a tax I don’t see the relevance.
December 24, 2009, 1:40 pmDesiderius says:
The welfare that this bill purports to further via the mandate is also not “general”, in that it robs young (and poor) Peter to alleviate some of old (and rich) Paul’s financial burden. Were the parentheticals reversed, and thus the bill less morally abhorrent, the welfare furthered would still not be the general one.
December 24, 2009, 1:42 pmPersonFromPorlock says:
I wonder if the Gun Control Act of 1934, with it’s tax on the transfer of automatic weapons – and draconian penalties if the tax isn’t paid – doesn’t establish a precedent.
December 24, 2009, 1:42 pmTwirip says:
If we take this seriously, we have to believe that the passage of the 16th Amendment was unneccessary.
December 24, 2009, 1:44 pmTwirip says:
The purpose of this legislation is not to improve the health of the citizenry. The Democrats are betting that it will improve the health of the Democratic party by creating a vast new class of people who are dependent on the government.
I think they are wrong in so thinking but that remains the purpose of this legislation.
December 24, 2009, 2:00 pmAllan says:
Twirip,
That is very funny. Sort of like saying that the the Bush administration’s purpose of cutting taxes was not to improve the economy or make people’s lives better, but to get more votes. Similar thinking with the Iraq war.
Perhaps you could teach the Cynics a few lessons.
December 24, 2009, 2:08 pmHans Bader says:
Portions of the bill also seem to violate the Equal Protection component of the Fifth Amendment, since they are racially discriminatory against both whites and minorities. ObamaCare contains both racial preferences (which discriminate against whites in violation of the Supreme Court’s Adarand decision) and lower standards for care in minority-oriented grantee institutions (which discriminate against black people in plain violation of the Equal Protection Clause, as even a commenter who usually disagrees with me notes).
The U.S. Commission on Civil Rights has expressed grave concerns about this bill’s racially discriminatory provisions, as a result.
I think the healthcare bill exceeds Congress’s authority under the tax power for reasons unrelated to those asserted above (it’s not an income tax, and satisfies the constitutional requirements for neither direct nor indirect taxes, assuming arguendo that Congress can use its tax power to get around limits on its commerce power in this context, contrary to a 1920′s era Supreme Court decision).
December 24, 2009, 2:20 pmrichard says:
So the court, rather than the elected bodies of this country, get to decide what constitutes “universal or nearly universal benefits” and this unelected body gets to overrule a Congressional determination on this question with which it disagrees. Thankfully, this type of thinking hasn’t been the predominant judicial view since the Roosevelt Court (since it really boils down to the court saying this law is good because I like it – it provides universal or nearly universal benefits- and this law is bad because I don’t like it -it doesn’t provide universal or nearly universal benefits).
December 24, 2009, 2:21 pmBrett Bellmore says:
Exactly my thought, In Sonzinsky v. United States the Supreme court basically said that, so long as a law was cast in the form of a revenue measure, they weren’t going to inquire into what Congress really was up to. I don’t see them changing that stance today.
December 24, 2009, 2:23 pmpublic_defender says:
So a use of the Spending Clause is “certainly” improper because it “clearly imposes net harms” on people ‘who would prefer not to purchase health insurance. . . .”? It’s not “clearly” a net negative because the theory is that costs generally go down when the insured stop subsidizing the uninsured and underinsured. You may disagree with that policy decision. You may disagree with the factual areguments behind the policy. But aren’t those decisions we leave to the elected branches?
December 24, 2009, 2:40 pmAnonymous says:
“Whatever it’s other virtues, the health care mandate certainly doesn’t qualify on this ground, since it clearly imposes net harms on many people, such as those who would prefer not to purchase health insurance, those who don’t wish to purchase coverage as broad as the mandate requires, and others.”
You mean its, I think.
December 24, 2009, 2:48 pmpireader says:
Professor Somin–
A bit off topic, but I’d be fascinated to read a cogent argument for the idea that the Federal responsibility for “common defense” would not extend to defending against an impending asteroid strike.
December 24, 2009, 2:53 pmMark Field says:
The fact that you used the word “obvious” should be a big honkin’ clue that it isn’t obvious at all. One of the goals of the Act is to reduce expenditure on health care and the unfunded liabilities under Medicare and Medicaid. Thus, it very much has a purpose of reducing the national debt.
Now, you don’t have to agree that this is a very good purpose; or that it’s a very effective way to accomplish that purpose; or that it’s rather indirect; but you can’t avoid the issue by the weasel word “obvious”.
December 24, 2009, 2:57 pmDilan Esper says:
Portions of the bill also seem to violate the Equal Protection component of the Fifth Amendment, since they are racially discriminatory against both whites and minorities. ObamaCare contains both racial preferences (which discriminate against whites in violation of the Supreme Court’s Adarand decision) and lower standards for care in minority-oriented grantee institutions (which discriminate against black people in plain violation of the Equal Protection Clause, as even a commenter who usually disagrees with me notes). The U.S. Commission on Civil Rights has expressed grave concerns about this bill’s racially discriminatory provisions, as a result. I think the healthcare bill exceeds Congress’s authority under the tax power for reasons unrelated to those asserted above (it’s not an income tax, and satisfies the constitutional requirements for neither direct nor indirect taxes, assuming arguendo that Congress can use its tax power to get around limits on its commerce power in this context, contrary to a 1920’s era Supreme Court decision).
I love a comment like this, because it shows that some people just don’t live in the reality-based community.
In that community, the chances of ANY portion of the health care bill being struck down are probably less than 5 percent. But out in right-wing extremist fantasyland, every provision of this thing not only violates 5 or 6 provisions of the Constitution, but the violations are perfectly obvious and unarguable.
You know, the Detroit Lions recently had an 0-16 season. After about the 14th loss, I don’t think management could conclude that the reason was the referees were getting the calls wrong.
December 24, 2009, 3:02 pmlgm says:
You might be right that the mandate is not a “tax”. But if you believe that, maybe you can convince the teabag movement.
But your argument about “general welfare” is weak. The Madison quote argues that tax money cannot be spent to do unconstitutional things. You go “tenther” and claim that anything not explicitly authorized in the constitution is unconstitutional — goodbye NASA.
BTW, why is it Federalist types love the tenth amendment but never heard of the one before it? That one guarantees the right to privacy. Or do libertarians agree with Roe, but hang out with Scalia because of his incisive wit?
December 24, 2009, 3:04 pmSammy Finkelman says:
Well, if anybody thinks that the federal government does not have, or should not have, the power to ward off or mitigate natural disasters, they should include this, because an asteroid strike would be a natural disaster. (as opposed to something caused by human beings, which is what the “defense” of “common defense” is talking about.
It’s not “defense” against hurricanes or floods.
But this could be considered to be something dealing with interstate commerce or the general welfare if you can’t think of anything else more specific.
December 24, 2009, 3:22 pmPersonFromPorlock says:
Incidentally, are we all clear on the fact that “limited government” doesn’t mean that government has limits, but that its unlimited power in toto is granted piecemeal in individually limited parts of the Constitution?
If one thing doesn’t work, another will.
December 24, 2009, 3:42 pmtanarg says:
” … ; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
—
Doesn’t that make the buying off of Nebraska unconstitutional?
December 24, 2009, 3:46 pmtanarg says:
Not a scholar, or even a lawyer, but it seems to me that “the general welfare” is worth a close look, i.e., “general” vs. “particular.” Health care is by definition a particularized activity and cannot be said to be related to the “general” welfare of the society, if we are to understand the word “general” as referring to a group *as a whole.* In other words, while spending money on discovering a method of diverting an approaching asteroid affects the general welfare of the United States, providing health care to individuals, though benefiting each person individually, does not (except by distortion of the meaning of “general” and viewing the aggregate individual health as being “general”). While it is no doubt correct to say that a healthy society is better *in general,* the “welfare” IS PROVIDED on an individual basis and thus is the fruit not of something done to increase the “general” welfare (all people being affected), but of something that is done individual-by-individual.
Maybe it’s tortured logic, though.
December 24, 2009, 3:55 pmDaniel Chapman says:
“One of the goals of the Act is to reduce expenditure on health care”
I’d still love to hear a good explanation of how forcing everyone to buy health insurance is going to reduce expenditures on health care… The insurance system has NEVER reduced the cost of care. It puts a buffer between consumers and the true cost of care, which eventually drives it up for everyone. The price of insurance itself will only go up once everyone is forced to purchase it.
Oh wait. Right. The government is going to control prices. Is that it?
December 24, 2009, 3:59 pmDel E. says:
Ilya:
What’s your position on federally imposed Med-Mal caps, of the kind favored by the GOP?
Unconstitutional? Or constitutional? If so on what, basis?
I recall seeing any of the people now attacking mandates at unconstitutional weighing in thoughtfully on this issue.
December 24, 2009, 3:59 pmDel E. says:
Should have read:
I don’t recall seeing any of the people now attacking mandates at unconstitutional weighing in thoughtfully on this issue.
December 24, 2009, 4:00 pmtanarg says:
Balkin is like a dog with a tasty bone — he just won’t let go, even in the face of a superb argument against his position, an argument that makes sense even to me. He’s bound and determined to hang on in desperation. Reading his responses in the debate at the link http://www.pennumbra.com/debates/debate.php?did=23 reminded me of the child who covers his ears and keeps talking back to his parents. Without correction, that child grows up to be a Democrat (forgive me, if there are any sensible ones here).
December 24, 2009, 4:18 pmDaniel Chapman says:
apples and oranges, del.
December 24, 2009, 4:20 pmBrett Bellmore says:
In “right wing fantasy land”, it’s understood that, “constitutional”, and “would be upheld by the Supreme court”, are two DIFFERENT things. Different things which ideally should mostly overlap, but, alas, we don’t live in that ideal world.
In the world of the “Reality based community”, OTOH, “constitutionality” is something to be determined entirely without reference to the actual text of the Constitution. Only whether it’s a good idea has any reference. Said community is quite capable of declaring the Supreme court wrong, too.
December 24, 2009, 5:11 pmRyan Waxx says:
It might very well be that the healthcare bill is unconstitutional compared to the original text of the constitution.
But in spending clauses and new programs, it would truly be strange to find limits… because it would nearly be the first time ever.
Sorry, but if this is against the constitution for budgetary or “scope of federal powers” reasons, then we’ve been butchering it for too long to suddenly object now.
December 24, 2009, 5:23 pmMark Field says:
As I said somewhere, I’m undecided on the mandate, but I think there is a good answer to your question. The mandate expands the pool of those paying premiums. Unless the outlays to the newly covered exceed the premiums they pay, then covering the new people is at worst a wash and at best will reduce the premiums for everyone else.
As a factual matter, the CBO and others believe that the majority of the uninsured are relatively healthy and that the gain from premiums will significantly exceed the costs of their care. That’s a net gain for the rest of us, all else being equal.
December 24, 2009, 5:32 pmA. Zarkov says:
I have always thought of “promote the general welfare” as simply boilerplate– part of a mission statement. Congress will promote the general welfare through the exercise of its enumerated powers. Nothing else really makes sense. The framers did not want to the Congress to have plenary police powers– they needed to convince the state of that fact so they would adopt the Constitution.
There is no need to mangle the Constitution to provide universal health care. Just raise the income tax to pay for the new program. End of story. The mandate is simply a device to avoid a tax increase by labeling what’s actually a tax increase as something else. SCOTUS might uphold the mandate, but there’s a lot going against that. This legislation is not popular, and there are very strong arguments as to why it’s unconstitutional. Upholding the mandate will require contortions that the public will find very artificial. Why would they do it?
Little children like to play silly word games like: When is a door not a door? When it’s ajar. Trying to call something not a tax when it’s the functional equivalent doesn’t fool anyone except members of the “reality based community.”
December 24, 2009, 5:55 pmArthurKirkland says:
You mean the great Republican-”Independent” civil rights alliance?
If Republicans are going to swing this weakly, they should probably switch to focusing on keeping the gloves up.
December 24, 2009, 6:01 pmNate says:
If this is the best the so-called limited government people can come up with, there’s no wonder the arguments gain no traction in the federal courts. Somin and others’ nothing-other-than normative arguments against the modern reading of every clause in Article I are perfectly acceptable in some Heritage position paper, but are not really to be taken seriously.
December 24, 2009, 6:04 pmChris Travers says:
I thought the USCCR was a branch of the government. At least they have a .gov address. Their web page suggests at much.
Remind me: do we have a Republican-dominated government at the moment?
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December 24, 2009, 6:15 pmChris Travers says:
Del: What specifics? How would they be imposed/enforced? By cutting medicaid reimbursement to states that don’t comply? Or would such caps only affect lawsuits in federal court?
December 24, 2009, 6:19 pmNate says:
It’s not a branch of government – it’s an independent commission of the federal government. Obama, who makes four appointments to the commission out of its eight, and Pelosi and Sen. Byrd, who each make two appointments, won’t be able to make the appointments until 2010, so the USCCR is currently composed solely of Bush’s conservative anti-modern civil rights theory picks.
December 24, 2009, 6:22 pmChris Travers says:
Really?
The USCCR outined several provisions of the bill which they thought would probably be struck down by the courts. Note that the USCCR is an executive-branch agency which, among other things, advises Congress on civil rights law.
The two major areas they address are:
1) Direction to give public service scholarships with a priority towards racial minority and individuals from a rural background.
2) Differential penalties on long-term care facilities who abuse patients based on whether they serve rural communities or ethnic minorities, as well as similar direction to waive some penalties for failing to meet reporting requirements on those facilities serving rural communities and ethnic minorities.
The first seems to fly in the face of recent Supreme Court cases on affirmative action.
The second has me shaking my head. It systematically strips ethnic minorities of equal protection under the laws. I REALLY thought we were beyond officially sanctioning less punishment for crimes when they are committed against ethnic minorities. The very inclusion of such Jim Crow-like provisions has me re-thinking whether I think section 5 of the Voting Rights Act is Constitutinal (i.e. if Congress passes such a law, maybe we still need it after all).
December 24, 2009, 6:26 pmsputnik says:
Looks , like my arguments of devilish nature and anti-humanity of libertarianism some time ago unexpectadly were proven by one of it’s defenders.
Thanks, Ilya
Oh and btw, RW professors seems first set up the goal then construct the argument around it.
December 24, 2009, 6:51 pmSounds familiar?
Dilan Esper says:
In “right wing fantasy land”, it’s understood that, “constitutional”, and “would be upheld by the Supreme court”, are two DIFFERENT things. Different things which ideally should mostly overlap, but, alas, we don’t live in that ideal world.
Brett, every single Supreme Court justice knows 50 times as much about the Constitution than you are I do, and has access to the best legal research and materials which you and I don’t.
It’s possible for them to get things wrong, and if you think there are, say, a couple of major doctrines where they are really off course, sure, that’s possible.
But if you think these people, these brilliant experts who know far more than you do, have gotten the meaning of just about every major constitutional provision dreadfully wrong and have no idea what the Constitution really means, you need to rent “Rounders” and think about what Matt Damon says about who the sucker at the table is.
December 24, 2009, 7:01 pmChris Travers says:
hmmm…. on further review, it looks like the USCCR is made up of 4 commissioners chosen by the President (Obama), 2 chosen by the Speaker of the House (Pelosi), and 2 chosen by the President Pro Tem of the Senate (Byrd).
It seems that right now, four commissioners are appointed by Democratic Party members.
I think ArthurKirkland owes an apology ;-)
December 24, 2009, 7:01 pmpublic_defender says:
That depends. Is a state’s share of Medicaid a “Duty,” “Impost” or “Excise”?
December 24, 2009, 7:04 pmreadery says:
This seems a very thin reed. First, “general welfare” can easily be given a very broad meaning quite distinct from paying the debt and national defense: it might refer, for example, to spending that provides members of the public with benefits. This makes it quite distinct from national defense (the ‘guns v. butter’ debate would not be a debate if the two were the same). It also makes it distinct from paying down the national debt. Yet it easily includes this bill.
Similarly, the claim that can’t de facto prohibt something by calling it a tax goes against a welter of Supreme Court cases holding that Congress can indeed do precisely this. As the classic example, McCray v. United States, 195 U.S. 27 (1904), Congress passed a tax on colored margerine that was forty times the tax on uncolored margarine. As the Supreme Court noted, the fact that such a tax has the de facto function of prohibiting coloring margarine is completely besides the point. So long as it raises revenue it’s a tax and what else it may do is simply none of the courts’ business.
This case is no different, indeed quite similar. If Professor Somin believes McCray and its progeny are wrong, he should at least acknowledge their existence.
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December 24, 2009, 7:30 pmjakecollins says:
Shorter Ilya Somin: I don’t like the bill so it can’t be a promotion of the “general welfare.” Wha!! Wha! Wha!
If Somin wants an end to democratic government, he should move back to Russia!
December 24, 2009, 7:42 pmChris Travers says:
readery:
The issue in McCray was actually more substantial than that. The basic argument was
1) Nobody wanted to buy uncolored margerine
2) the tax on colored margerine would effectively destroy the margerine market
3) Therefore it was a matter of regulatory takings because the business was effectively deprived of its investments without any due process.
The court basically said tough luck. But this raises a number of questions
1) Are taxes ever looked into in terms of regulatory takings cases or other Constitutional issues? Or could the government, say, tax every firearm at 1000% of its retail value every year unless donated free of charge to the government by 2013?
2) How has regulatory takings case law evolved since McCray generally?
December 24, 2009, 8:05 pmDaniel Chapman says:
Mark Field: The price of health insurance is not the same as the price of care. In fact, those relatively healthy people are generally paying MORE for their care than the people with health insurance. When everyone has health insurance, demand for health CARE goes UP because they are divorced from the actual costs of the product they consume.
This bill will NOT lower the cost of health care. It will drive up demand, and the only possible answer government will have will be artificial price caps (and long waits for service) or rationing.
December 24, 2009, 8:47 pmAllan Walstad says:
Thank you Prof. Somin for keeping at this.
The question of whether the Supreme Court would strike down any part of the fed health takeover is of course entirely separate from the Constitutionality thereof. The Court has been complicit in massive federal violation of the Constitution for at least 75 years. The Constitution set up a federal government with strictly limited powers, and in case anyone was too dense to understand that, the 10th Amendment drove the point home. You don’t have to be a legal scholar to read that writing on the wall. Obscuring it is an industry among legal “scholars” who are too clever by half.
Attempts to find loopholes by which to “justify” unconstitutional activity exemplify what I like to call shyster lawyerism. They should be recognized as such and struck down as such. The fact that the Court does not do so does not make them ok. But it does have the effect of entrenching such activity and paving the way for more. An example of the game, as we see, is to lay a tax on something that pols wish to discourage but have no direct Constitutional authority to regulate. The whole point is to engage in unconstitutional regulatory activity and the tax is simply a ruse. Other approaches invoke the welfare or commerce clauses. The tip-off to unconstitutionality there is when the “justification” clearly implies virtually unlimited federal power, which is precisely what the Constitution was set up to deny. If the feds can impose a socialized retirement system, take over one sixth of the entire economy, or indeed prohibit in-state consumption of in-state-grown marijuana and regulate home-grown crops for home consumption under the welfare or commerce clauses, then it’s plain that there is really no principled limit at all on federal power, save possibly via express prohibitions such as in the Bill of Rights. But since the Constitution was clearly intended to hold the feds to a limited range of powers, such invocations are merely ruses.
Without overturning existing unconstitutional federal activity, attempts to draw a Constitutional line now are necessarily pretty arbitrary. I guess I have to hope for the arbitrary.
December 24, 2009, 9:45 pmArthurKirkland says:
The governing law specifies that no more than four members may be members of a single political party.
The Republicans gamed the system by selecting two persons registered, at least at the relevant moment, as “independents” — one a Heritage Foundationeer, the other a former Republican Senate staffer, neither anywhere close to “independent” in ideology — creating a 6-2 tilt and stripping the commission of credibility.
I hope the Democrats refrain from following the Republicans’ lead when a Democratic President and Democratic Congress are appointing replacements — and, until the faux independents leave, I hope the Democrats refrain from wasting a moment on the commission’s statements.
December 24, 2009, 10:17 pmMe says:
The U.S. Commission on Civil Rights, which has criticized the racially discriminatory provisions in ObamaCare (like letting healthcare institutions that focus on minorities get away with more mistreatment of their [minority] patients), does have at least one genuine independent on it: Todd Gaziano, who once worked for Sen. Jennings Randolph (D-W.Va.), and voted for independent Bob Barr, not John McCain or Barack Obama.
The independents have consistently voted with the Republicans in questioning the Obama Administration’s controversial racial actions, like dropping a voter intimidation case in Philadelphia against members of the racist, antisemitic New Black Panther Party (one of whom was a poll watcher for the Obama campaign), and questioning the racial set-asides and discrimination in ObamaCare.
Actually, come to think of it, even the Democrats on the Civil Rights Commission questioned the Obama Justice Department’s actions in the Philadelphia voter intimidation case.
Even Democrats have difficulty defending the Obama Justice Department’s actions in some racially-charged cases.
December 24, 2009, 10:36 pmyankee says:
Maybe you think it’s certainly clear, but it’s certainly not nearly as clear to the rest of us. People benefit from being insured; preventing them from benefiting even more by free-riding is not imposing a “net cost” on them.
Where did you get this “universal” or “nearly universal” requirement either? Is Congress not empowered to spend on social welfare programs that merely benefit a large number of people? I don’t know how Medicaid and TANF could be justified other than as spending for the general welfare; is it your position that those programs are unconstitutional as well? I’m sure many commenters on this board think so, but most people see it as rather less than “certain” that Medicaid is unconstitutional.
Even if the program constitutes a cost rather than a benefit to “many” (how many?) people, the “general welfare” could also also include preventing people from taking advantage of the public in general. Except for those who remain healthy until they die instantly in car crashes, everyone is going to suffer serious injury or illness at some point. If they’re uninsured (and not wealthy), those costs will be passed on to the public in the form of unpaid hospital bills. Imposing costs on particular people in order to provide widespread benefits to the public at large seems like a promotion of the general welfare to me.
December 24, 2009, 11:32 pmDuffy Pratt says:
What was the necessary and proper clause for again? I think your argument here is extremely weak. Taxing and spending could certainly be necessary and proper measures to achieve goals under the other enumerated powers.
Thus, it strikes me that your explanation of general welfare stands to the necessary and proper clause, as paying off the debt stood towards general welfare in the explanation that you reject.
December 24, 2009, 11:38 pmDilan Esper says:
The Court has been complicit in massive federal violation of the Constitution for at least 75 years.
This is so instructive. Here you have a court that has the brightest minds, the foremost experts on the Constitution in the entire country– yet they are constantly and repeatedly wrong for 75 years despite membership changes and some anonmymous commenters on the Internet who have maybe read a few cases and the text of the document a few times have brilliantly figured out what eludes the experts?
Seriously, if you think the Supreme Court is wrong about everything, you need to stop and think for a second. Because it’s like concluding that the sun revolves around the earth. It may look that way standing on the earth, but the more obvious conclusion is the opposite– the Supreme Court has been basically getting things right and you guys simply don’t know constitutional law as well as they do.
December 25, 2009, 12:06 amMark Field says:
This is wrong. Group policies are cheaper than individual ones precisely because the risk is spread between healthy and unhealthy. The cost of health care drives the cost of insurance.
As for the moral hazard issue, that’s true of all insurance. That’s why it’s necessary to go through levels of approval before the care is actually given.
December 25, 2009, 12:06 amreadery says:
Although I’ve tended to support greater limitations on federal powers under clauses like the Commerce Clause than the Supreme Court has accepted, it really seems to me that in the Spending Clause the framers really and truly intended to permit Congress to tax and spend money to create general national programs to address a broad range of issues, with arguable issues only on areas involving borders with other constitutional provisions such as limitations on religious-related spending, interference with the operations of state government, and similar issues.
I simply didn’t read the Federalist paper cited to suggest any concrete limitation on the scope of the General Welfare clause. All it suggested is that the power to tax is different in character from the power to regulate directly.
Since the General Welfare clause is itself an enumerated power, to suggest that it only means that Congress could spend to effect its other enumerated powers basically makes the provision meaningless. The framers knew how to relate a power to others — they did this in the Necessary and Proper Clause — and if they intended the General Welfare Clause to have a similar dependence, surely they would have said so.
One can’t read a constitutional provision into near-meaninglessness just because one doesn’t like it. It seems to me that a fair reading of the 2nd Amendment makes it an individual right, because the term “right of the people” always refers to an individual right in every other context it is used. (If “people’ meant government, then the Petition clause conveys a right of the government to petition the government’s government. Such a reading is simply too meaningless to be plausable.) Similarly, it seems to me a fair reading of the General Welfare clause cannot fail to recognize it as a specific independent enumerated federal power, and in my view a fairly broad one.
December 25, 2009, 12:18 amChris Travers says:
Dilan Esper:
Without going into what the Court would do about the individual mandate, which I don’t think really matters (because the mandate to buy private insurance is so unpopular both among the left and the right that if the court won’t strike it down, I have little doubt Congress will repeal it in a timely fashion), let’s discuss a couple of fundamental issues as to the role of the courts and constitutionality generally.
The idea that Constitutionality is defined by Supreme Court precedent presupposes a viewpoint that I think the court has explicitly rejected, that the role of the court SHOULD be to rigidly enforce the Constitution. While I still maintain that there may be limited circumstances where the court might review the constitutionality of military action (for example, where the Executive blatantly violates COngressional authorization by engaging in military action that Congress has said no appropriations shall be used for), these are fairly few and far between. Political questions, interpreting whether something amounts to general welfare, etc. are all part of the Constitution but generally are and should be outside the court’s analysis.
Similarly if the Court defers to Congressional judgement about the Constitutionality of the law, this does not imply it is Constitutional. It simply means that the court has not established a position.
Viewed in this way, what the court declares to be “Unconstitutional” is very reasonably a proper subset of what IS “Unconstitutional.” To say otherwise is to entrust the Court with powers that it claims it does not Constitutionally possess.
December 25, 2009, 12:22 amChris Travers says:
(For example, would it be COnstitutional for the Senate to read the age requirement as applying to birthdays and refuse to seat an individual born on Feb 29th? In the abstract it would seem Unconstitutional. In practical terms, I don’t think a court would review such a decision.)
December 25, 2009, 12:46 amPubliusFL says:
Right! And the shift in some doctrines around the time of the New Deal can be explained by the fact that that’s about the time when presidents started appointing the brightest minds and foremost experts on the Constitution in the country to the Court, whereas before that they pretty much picked random guys off the street.
I don’t see Madison as accepting that the General Welfare clause is itself an enumerated power at all. He wrote: “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” The phrase “to pay the debts, and provide for the common defense and general welfare of the United States” is the general phrase providing a brief summary of the purpose of Congress’ power “to lay and collect taxes, duties, imposts, and excises.” The recital of particulars, explaining and qualifying the objects to which Congress may apply its tax revenues, follows in the rest of Section 8.
Let’s look at the language again: “Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States.” Madison and Hamilton had a difference of opinion on how to interpret this. One way to view it is as though a word or two were accidentally omitted from before the second “to” in that quoted language. Hamilton reads it as though it said “Congress shall have power to lay and collect taxes, duties, imposts, and excises, and to pay the debts, and provide for the common defense and general welfare of the United States” (the second half is a separate and additional grant of power). Madison reads it as though it said “Congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and provide for the common defense and general welfare of the United States” (the second half briefly merely explains the purpose of the grant of power in the first half).
December 25, 2009, 12:51 amAndrew U D Straw says:
If Congress does not have the power to enact this health bill, then it also didn’t have the power to approve the Louisiana Purchase or the purchase of Texas from Mexico.
Nevermind the fact that France wouldn’t want the people in those states as citizens (Fred Phelps as a Frenchman?!)…
Jefferson hesitated on the issue, and thought he actually didn’t have the power to buy it. He drafted constitutional amendments to take care of the issue, but with the $15 million deal dangling there in front of him, he disregarded his prior adherence to constitutional principle. What does that mean, exactly? Does that invalidate the Homestead Act? Can Congress give away French property? If the transfer in 1803 was invalid, then the $15 million was simply a gift. Did Congress have the power to bestow $15 million gifts to foreign countries? I don’t remember seeing that in Article I.
This creates other troubles as well. Can people set up little legislatures in foreign countries and then petition Congress to be annexed and made into states? I am going to try that next time I visit Tuscany. I think that would be a really nice state. What is a legislature, anyway? Can one person be a legislature? Can a legislature limit voting only to the people in the legislature? I don’t remember reading anything about that in Article IV.
Of course, in 1803 they didn’t know yet that the Supreme Court would do what it did in Marbury. No longer were constitutional questions just the lazy realm of Congress, the President, and every other yokel who had a view. People like Spooner.
Like it or not, the Supreme Court decides these questions now. And the Supreme Court has said that it is *Congress* who get to decide what constitutes “general welfare” when they pass a spending bill.
Now, as far as the mandate goes, conservatives might take some comfort in Butler (1936 case), which was cited in Dole. Butler was about restricting the power to regulate under the spending clause. Both Dole and Butler affirmed Congress’ broad spending powers. Dole, however, intimated that there are limits to how far Congress can go in regulating states by withholding funding. Butler is worth a read too.
As far as what Congress can do under the Commerce Clause, well, to limit Congress there one would have to throw out a whole lot of federal criminal law.
And what’s this about an asteroid? All Congress has to do is shoot a rocket up there with some pot on it, and suddenly they will be able to regulate it.
December 25, 2009, 12:53 amRaich.
Desiderius says:
Dilan,
How would your appeal to authority not apply just as well to the Taney court?
December 25, 2009, 2:02 amBrian K says:
this is an interesting statement. as far as the second amendment is concerned every tiny punctuation mark matters and absolutely nothing is superfluous. however, in parts of the constitution that conservatives don’t like, the words become mere “boilerplate” and can be ignored entirely.
December 25, 2009, 2:07 amAndrew U D Straw says:
Everyone keeps quoting Madison. His was only one view amongst the Founders.
Hamilton paints a very different picture. Our first president appointed him Secretary of the Treasury, so his ideas about Congress’ powers to tax and spend under Article I, s8 should be given due weight.
Federalist papers 31-37 contain Hamilton’s view.
http://thomas.loc.gov/home/histdox/fedpapers.html
#31:
“Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish.”
#32
“Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States.”
INDEFINITE
And if that isn’t definite enough, maybe this Hamilton quote is:
http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html
Now *what* are we to make of that? Taxing powers are plenary, and the power to appropriate that money encompasses a vast variety of particulars, which are susceptible neither of specification nor of definition.
Is it any wonder, then, that the Supreme Court gives such deference to the power to spend?
What Hamilton doesn’t talk about is regulating through taxation. It would have been helpful if he had talked about that.
The other way you could look at Art I, s8 is that the taxing and spending power is in the first clause. All of the other enumerated powers may need fiscal support, but none of them says directly that taxation and appropriation is authorized towards that end. There is a mention of appropriation and when it must happen, but not authority to appropriate. Without having to creatively use the necessary and proper clause, Congress could just look up to the first clause and justify any taxing and expenditure there.
The other enumerated clauses authorize a lot of things that Congress may do. Having a broad view of the spending power does not add any new such powers, just spending on whatever Congress wants so long as they say it is for the general welfare. Presumably the spending power means that Congress can authorize buying things. That would be necessary and proper. Ergo, Jefferson but for his cramped view of the spending power should have had no problem justifying purchasing Louisiana.
December 25, 2009, 2:07 amreadery says:
Let’s look at the language again: “Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States.” Madison and Hamilton had a difference of opinion on how to interpret this. One way to view it is as though a word or two were accidentally omitted from before the second “to” in that quoted language. Hamilton reads it as though it said “Congress shall have power to lay and collect taxes, duties, imposts, and excises, and to pay the debts, and provide for the common defense and general welfare of the United States” (the second half is a separate and additional grant of power). Madison reads it as though it said “Congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and provide for the common defense and general welfare of the United States” (the second half briefly merely explains the purpose of the grant of power in the first half).
if Madison’s veiew were plausable, there would be be no comma between “debts” and “and provide”. But there is, so Hamilton’s interpretation is the one consistent with the grammar.
December 25, 2009, 3:05 amDilan Esper says:
The idea that Constitutionality is defined by Supreme Court precedent presupposes a viewpoint that I think the court has explicitly rejected, that the role of the court SHOULD be to rigidly enforce the Constitution.
You guys seem to automatically default to an argument that nobody, except maybe the hardest core legal realists, make.
Of course the Supreme Court doesn’t define what is constitutional. However, that doesn’t mean that any of several lesser claims are false:
1. The Supreme Court is comprised of experts on constitutional law who conscientiously decide their cases and do their best to reconcile their holdings with prior precedent established by other courts full of very smart constitutional lawyers– therefore, the Court’s decisions are quite strong EVIDENCE of what the Constitution means, certainly stronger evidence than the opinions of anonymous blog commenters.
2. The Supreme Court certainly gets to make the call as to the constitutionality of all but a few nonjusticiable political questions– that doesn’t make them right, but it does mean their opinion counts for more than yours does.
3. Given that one must usually go to court to redress a constitutional violation, what the courts say matters and can at least OPERATIONALLY define the constitution– in other words, what the courts say is applied as constitutional law whereas the opinions of blog commenters are not.
As a result of these and other factors, if you are saying “well, the Supreme Court has gotten everything wrong for 75 years”, you have a very tough argument to make, because the much, much more likely scenario is that the Supreme Court has NOT gotten everything wrong for 75 years and that in fact, you are mistaken on some basic points.
December 25, 2009, 4:50 amDilan Esper says:
Right! And the shift in some doctrines around the time of the New Deal can be explained by the fact that that’s about the time when presidents started appointing the brightest minds and foremost experts on the Constitution in the country to the Court, whereas before that they pretty much picked random guys off the street.
Publius, what’s sad is that you think you are making some brilliant point here. There were huge shifts in society that occurred during the Great Depression. You should not assume that, say, the Morrison Waite Court (which was pretty expansive on economic due process issues and pretty narrow in their construction of the commerce clause) would have, if presented with the Great Depression, determined that federal power could not expand in light of the national emergency. Certainly Justice Owen Roberts changed his mind about it.
In any event, your snark totally misses that the changes of the 1930′s did not come out of nowhere or simply reflect different legal minds.
December 25, 2009, 4:53 amDilan Esper says:
How would your appeal to authority not apply just as well to the Taney court?
Desid, don’t be a jackass. I am not making an “appeal to authority”, which is a freshman year of college logical fallacy where you just say “because X says it, it must be true”. Rather, I am saying that there are all sorts of things about the Supreme Court, including not only their expertise and intellect but their experience and their vast research resources, that make it more likely that you or I or any other internet commenter would be wrong about large swaths of the Constitution than it would be for them to be wrong about it.
Note how this statement is framed. It is a matter of PROBABILITY. Not certainty. Experts can sometimes be wrong. But I’d take the nine justices on the Supreme Court over any group of anonymous commenters on the Internet any day of the week.
December 25, 2009, 4:56 amDaniel Chapman says:
*sigh*
Never mind, Mark.
December 25, 2009, 10:07 amMark Field says:
Let me just add to Dilan’s point another consideration, namely that all of the Courts’ expansive commerce clause and taxation decisions have come in response to laws passed by Congress and signed by the President (often by very wide margins indeed). IOW, the other two co-equal branches of government not only agreed with the Court, they actually led the way. This isn’t something the Court “imposed” on us, it’s something our representatives in Congress strongly supported.
Why is this important? Again, because the Bank precedent tells us that when a particular understanding of the Constitution becomes widespread and persists over time, that is also good evidence that the interpretation is correct. As Madison said,
“It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though on the original question held [by Madison] to be unconstitutional, received [Madison’s presidential] signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution through a period of twenty years, with annual legislative recognition … and with the entire acquiescence of all the local authorities, as well as of the nation at large; to all of which may be added a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto [by Madison], under these circumstances, [especially after having admitted both] the expediency and … necessity of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intentions.”
Madison respected the principle of majority rule. He personally thought the Bank was unconstitutional, but the majority of his fellow countrymen obviously disagreed. More significantly, they demonstrated that disagreement by consistently treating the Bank as Constitutional over a long period of time. Madison deferred to that majority – not a temporary one, but one which persisted over a period of 25 years – as settling the question of constitutional interpretation. In a very real sense, the people have ratified this understanding.
As Dilan has pointed out on other occasions, the same reliance interests apply with even more force here.
December 25, 2009, 10:25 amPersonFromPorlock says:
Dilan, the only qualification for the SCOTUS is the ability to get nominated and confirmed, neither of which necessarily involves a great deal of constitutional knowledge or judicial neutrality – unless we suppose that the politicians making the decisions are themselves knowledgeable and care about ensuring a neutral Court.
So, no, I don’t think the Court’s nominal expertise swamps our ability to criticise its interpretations, or even makes us all that likely to be wrong.
December 25, 2009, 10:40 amAllan Walstad says:
Hamilton abandoned the Constitutional Convention when it became clear that his dream of an all-powerful national government would not be realized. Madison and the others stayed on and fashioned our Constitution. Then Hamilton returned to sign it and propagandize for it because it was the best he could get. That’s why I don’t think his interpretations, which are just a way of insinuating his rejected view, should be taken seriously as compared with those of Madison.
Dilan Esper: That the Court has been complicit in violating the Constitution for at least 75 years does not mean, of course, that it got everything wrong during that time. I don’t claim the expertise to examine fine points of law in light of multiple legislative acts and precedents, any more than I’d claim to be a fashion expert. But I can see when the emperor is walking around in his underwear, and I can see when the plain intent of the Constitution–a limited federal government–has been subverted. Down through history, the “experts” have “known” things that we can now only shake our heads at as we look back. And shyster lawyers are no doubt clever and well-versed–but they are not honest, and they are not wise.
December 25, 2009, 10:42 amAllan Walstad says:
That’s why, for my part, I used the word “complicit.”
Mark, the short answer to the rest of your last comment is simply that the Constitution provides for an amendment process. If common “understanding” of the Constitution comes to conflict with the clear intent of the authors, and if this understanding really does have such universal approbation, then simply amend the Constitution. That way, the Constitution remains relevant as a set of rules to abide by.
[Oh, but of course: then it would constrain the pols, and we can't have THAT, can we, not even temporarily? So instead, shyster lawyers pick at it for loopholes until nothing remains but a mushy carcass.]
December 25, 2009, 10:58 amSarcastro says:
Naw naw naw! Dilan Esper, you are missing the point! ‘complicit in violating the Constitution for at least 75 years’ means they KNOW!
They know the Constitution is supposed to be the same rugged individualist document it was back in the founding, but use other (totally clearly wrong to all right-thinking Americans) methods of interpritation because they hate Freedom!
December 25, 2009, 11:09 amAllan Walstad says:
Oh, darn–looks like I triggered another infantile straw-man outburst from Sarcastro. Sorry, folks.
December 25, 2009, 11:20 amSarcastro says:
[Sorry, but when you say people who don't hew to Originalism do so only because they want to give Congress more power, I get a bit infantile.
Belive it or not, some who disagree with originalism might do so with good faith, not merely because they don't want the trouble of ammendment.]
December 25, 2009, 11:50 amMark Field says:
I think this overlooks some important points. First, Hamilton’s writings in the Federalist Papers undoubtedly influenced some of those who voted to ratify the Constitution. Second, Hamilton’s views influenced both Washington and Congress, and they adopted his arguments. Third, there was a Federalist Party and Hamilton was the leader of it. Lots of Founders shared his views.
What Dilan is suggesting is that the very fact of widespread, educated disagreement with your view is itself evidence that the intent of the authors might not be as clear as you seem to believe (or that it might be very clear and you just wrong). IOW, he’s asking for some humility by those opposed to current doctrine.
December 25, 2009, 11:53 amChris Travers says:
I think there are two fundamental questions here.
The first is whether post New-Deal jurisprudence was simply due to better selection of judges or shifts in Constitutional theory. I would argue that FDR’s threats to stack the court have created precedents which we may not be able to get away from in a wide variety of issues, not only commerce clause type areas but also cases like Ex Parte Quirin. I think it is reasonable to see the precedents issued under threat to be invalid and should not be used going forward.
On the other hand, there is a fundamental issue in terms of our own responsibilities to the Constitution. Our government is not a static one, and the Constitution isn’t itself perfectly clear on every issue. We have to interpret the Constitution based on what sort of government we want. Hence it is also reasonable to see the shifts regarding ideas of federalism and states rights following both the Civil War and WWII to be legitimate within the confines of the Constitution and still within the four corners of the document.
(Which view do I hold? Both.)
December 25, 2009, 12:07 pmBrett Bellmore says:
Dilan, for all their knowledge, which does indeed exceed mine, and for all their staff, (I have none.) they still manage to make bone headed mistakes from time to time, which the layman can spot. (Example: Scalia thinking that Miller had lost at the circuit level, when it was the US appealing its loss to the Supreme court in US. v. Miller.) And neither knowledge, brilliance, nor staff protect you from error, when it’s deliberate, not a mistake.
The Court consistently makes errors in the direction of increased federal power, because its members are chosen by people who will exercise that power. This is, perhaps, the greatest flaw of the Constitution.
December 25, 2009, 12:14 pmChris Travers says:
Just as an added note too late to edit the above post….
the last fifty years have seen evolving jurispridence in many areas such as due process, freedom of speech, and so forth. I think that folks who are strict originalists might not like to go back to, for example, the First Amendment jurisprudence of the 1920′s or even the 1820′s. Similarly does anyone here doubt that Gideon v. Wainwright was properly decided?
The difference here is that these areas have developed along lines of functional analysis rather than asking what the Framers would have done.
However this current issue will present the Court with a historic opportunity. The mandate to buy health insurance from private parties is deeply unpopular among most Americans regardless whether they are on the right or left politically. If the court wants to safely limit the commerce clause without losing credibility they have a much freer hand in this case than in any in the past. (I am not saying they will. They could simply defer to Congress, and this may be likely or not. I can see good arguments on either side.) If they do defer to Congress though it could be something that creates legislative backlashes similar to Kelo.
December 25, 2009, 12:21 pmPubliusFL says:
Late 18th century usage sprinkled commas more freely than is typical today. Article 1 Section 8 is full of commas that would not be there if the document were written today. Punctuation was not used the same then, and is not terribly consistent through the Constitution itself.
If you want an argument from grammar, consider this: in other places in the Constitution where multiple grants of power are contained in one sentence, the infinitive marker “to” is not repeated before the leading verb in the later clause. For example:
“To coin Money,
toregulate the Value thereof, and of foreign Coin, andtofix the Standard of Weights and Measures”“To declare War,
togrant Letters of Marque and Reprisal, andtomake Rules concerning Captures on Land and Water”This suggests that the “to” before “to pay the debts” is not just another infinitive marker appearing before another verb performing the same function as “to lay and collect taxes.” That other function is describing the purpose of the power to lay and collect taxes.
December 25, 2009, 1:02 pmDaveM says:
But isn’t this entire line of discussion really beside the point? No one is arguing that Congress cannot collect _taxes_ and spend them pretty much as it pleases on health care. The problem we have here is that Congress is dictating that individual citizens purchase specific services from private corporations. That’s not a “tax” at all.
December 25, 2009, 1:19 pmBrett Bellmore says:
Precedent suggests that, so long as Congress is willing to pretend it’s a tax, the Supreme court is going to be willing to go along with the joke. That IS the basis on which Supreme court Justices are chosen, after all: Their willingness to pretend that the Emperor who chose them is well dressed.
December 25, 2009, 1:46 pmbyomtov says:
Let’s look at the language again: “Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States.” Madison and Hamilton had a difference of opinion on how to interpret this.
I’m still having a hard time seeing why any of this is relevant.
Congress has the power to tax, constrained in various ways, and it has the power to spend money for some purposes and do various other things.
These are two different things. Take an absurd example. Suppose Congress imposes some new import tariff and uses the money to establish a national church. Does the fact that the church is unconstitutional affect the constitutionality of the tariff? Why? The church can be stopped on constitutional grounds, but surely Congress is free to keep the tariff in place and use the money as part of general revenue.
In other words, it seems to me that the case being made against the tax argument really does not address the tax issue at all. It just says the tax is not allowed because the reforms are beyond Congress’ powers. This is simply a repetition of other, non-tax related criticisms.
December 25, 2009, 1:47 pmAllan Walstad says:
I do take it that the Constitution was intended as a set of rules, that the purpose of language used therein was to convey the intent, and that where the intent can be clearly discerned, it is to be obeyed unless amended. Call that “originalism,” call it whatever you want. But if you don’t view the Constitution that way, then to a very large extent you don’t have a Constitution at all. You are just back to raw political power. You have shyster lawyers who pick it apart for loopholes to justify whatever those with political power at the moment want to do. Perhaps some justices have not wanted to give Congress more power, but were afraid of worse consequences if they stood in the way–FDR’s threat to pack the Court as an example of the determination of those in power to use raw power ruthlessly. Perhaps many pols seek more power for what they believe, in good faith, are good purposes, and feel that their good purposes trump any concern for the words on some old parchment. Eventually, when a highly pliable view of the Constitution becomes the vogue, no doubt many feel in good faith that this is the only way the game can be played, or they are intimidated into compliance by ridicule. And of course, if only those who are willing to play that game get appointed to high court positions, then after awhile it becomes possible to to gesture to all that fine jurisprudence by all those learned justices, as opposed to the presumed ravings of those benighted few of us who dare question the game in its entirety.
December 25, 2009, 1:48 pmAllan Walstad says:
Well, for what it’s worth, Dave, I’m arguing just that. The Constitution limits the feds to a narrow range of responsibilities, leaving the rest to the states or the people themselves. Providing for the nation’s health care is not on the list of fed powers. This is precisely the sort of activity left to the states, as they may choose to pursue it.
December 25, 2009, 1:53 pmDilan Esper says:
So, no, I don’t think the Court’s nominal expertise swamps our ability to criticise its interpretations, or even makes us all that likely to be wrong.
You are answering an argument that I am not making. Of course it’s fine to criticize the Supreme Court.
But there’s a big difference between saying, say “Roe v. Wade is a case that the Supreme Court got wrong” or “I disagree with the Supreme Court’s refusal to impose strict scrutiny on sex classifications” and the sort of thing I hear from many conservatives, e.g., “the Supreme Court has been completely ignoring the Constitution for the last 75 years”.
The latter statement assumes not that the Court got this or that particular case wrong, but that all these very smart people who have much more access to research the meaning of the Constitution and much more experience in interpreting it nonetheless cannot figure out what any ordinary person with a laptop knows.
It’s the difference between criticizing results of particular cases and basically asserting that every one of these people over decades had no idea what they are doing. And if one really believes the latter, then the likelihood is that it isn’t the Supreme Court who doesn’t know what it is doing.
December 25, 2009, 2:00 pmDilan Esper says:
So, no, I don’t think the Court’s nominal expertise swamps our ability to criticise its interpretations, or even makes us all that likely to be wrong.
You are answering an argument that I am not making. Of course it’s fine to criticize the Supreme Court.
But there’s a big difference between saying, say “Roe v. Wade is a case that the Supreme Court got wrong” or “I disagree with the Supreme Court’s refusal to impose strict scrutiny on sex classifications” and the sort of thing I hear from many conservatives, e.g., “the Supreme Court has been completely ignoring the Constitution for the last 75 years”.
The latter statement assumes not that the Court got this or that particular case wrong, but that all these very smart people who have much more access to research the meaning of the Constitution and much more experience in interpreting it nonetheless cannot figure out what any ordinary person with a laptop knows.
It’s the difference between criticizing results of particular cases and basically asserting that every one of these people over decades had no idea what they are doing. And if one really believes the latter, then the likelihood is that it isn’t the Supreme Court who doesn’t know what it is doing.
December 25, 2009, 2:04 pmAndrew says:
I think Ilya might have a good point that we’re talking here about a penalty or fine, rather than a tax. In contrast, I don’t think Ilya’s “general welfare argument” would fly in SCOTUS. As for the commerce power, I don’t think forcing citizens to participate in commerce against their will qualifies as regulation of interstate commerce.
Personally, I’m against this bill’s proposed subsidies for private insurance companies, regardless of whether the companies cover abortion. Instead, Congress should provide health insurance vouchers to citizens, and then citizens can choose whichever insurance companies and insurance plans we want (as long as the vouchers don’t support abortion, quackery, assisted suicide, et cetera).
Ilya, do you think a federal voucher program would be unconstitutional? If so, could Congress still establish such a program if it relies not just on its enumerated powers under Article I Section 8, but also on an interstate agreement under Article I Section 10?
Note that Rahm Emanuel’s older brother (Ezekial) has been pushing a voucher plan. See here.
December 25, 2009, 2:27 pmfaulkner says:
“The so-called “tax” in the proposed health insurance mandate is really just a penalty for failing to comply with the requirement to purchase health insurance. It is even referred to as a “penalty” in some versions of the bill.”
I find myself in agreement that any court would be hard pressed to find the individual mandate penalties in this bill to be a tax. I do think however that, had Obamacare been crafted as it was originally presented, with a public option, (but without the mandate to purchase individual policies) that it might have been more easily sustained as constitutional. The public option could have been funded by a tax and could have been available to all, but not mandated. Benefits, at least initially, could have been made so attractive as to drive the private insurance companies from the field, thus accomplishing the goal of a single payer system. While I do not support this or the current plan, that approach would have more integrity, from a constitutional standpoint, than the current one.
“Even if the mandate does count as a tax…
[i]t can only be defended by arguing that it promotes the “general Welfare.” In cases such as South Dakota v. Dole, the Supreme Court has defined “general welfare” as more or less anything Congress says it means.”
Professor, I do not agree with your interpretation of this case at all. While Dole sustained the Congressional “drinking age” mandate of 21, I find nothing in the case that suggests that the courts would tolerate a qualitatively broader mandate upon individuals to purchase a private product. The Court even noted how gentle was the Congressional stick wielded against South Dakota:
“Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which “pressure turns into compulsion.” Here, however, Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is unconstitutional simply by reason of its success in achieving the congressional objective.
When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact.
Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory but in fact.”
I think the same rationale applies a fortiori in the case of an individual, who is more vulnerable to federal coercion than a state, and whose rights vis a vis the federal leviathan are protected in the Constitution on several levels, indirectly (via the states through the Tenth Amendment and the enumerated powers clause) and directly through the Ninth Amendment. The fact that the Court was so sensitive to the “coercive” aspects of the Congressional mandate and the fact that this regulation involves a new frontier, the requirement on pain of fine and imprisonment, that every individual citizen who is alive purchase a private product makes it highly likely that this measure, insofar as I understand it, cannot pass constitutional muster. (look at O’Connor’s and Brennan’s dissents, if you need any encouragement.)
December 25, 2009, 2:28 pmR. Richard Schweitzer says:
For a little more clarity, let us restate the proper syntactical order of the question:
Does Congress have the authority to use its powers of taxation in order to enact a “Health Insurance Mandate?”
On examination, the powers of taxation are not being used to enact (i.e., as the means for implict authority for the legislation)those powers are being invoked to enforce particular provisions of a larger scope of legislation.
In the case of Medicare, the powers of taxation were the basis of the enactment, as was the case of the FICA. After the imposition of the tax and requisite receipts, Congress appropriated funds for disbursements to specified beneficiaries.
The question of the Constitutional authority (specific power)to make such disbursements remains open – but is not aggressively pursued.
So, it is possible that Congress could have (but in fact has not) levied a tax (as a “fine” or “penalty”)to initiate the funding of a benefit to be allocated later. However, that is not the case in this instance. Congress is not providing for disbursements of benefits to those who will be subject to the proposed levy. Instead, it is “commanding” that those subject to a potential levy seek and provide for themselves a legislatively designed and determined set of benefits at their own entirely separate cost.
So,it appears that the authority of Congress to enact the mandate in question is not related to the powers of taxation; keeping in mind that Congress is not providing to those taxed any specifically related benefits.
Whatever authority Congress may have (if any) to enact such a mandate in this case must be found elsewhere; in an extension of the Commerce Clause or a new application of Police Powers formerly reserved to the states or the people.
Any takers for that argument?
December 25, 2009, 3:02 pmR. Richard Schweitzer says:
Separately, as long as so many are commenting about these proposals, it should be noted that their intent and purpose are:
To redistibute the costs and benefits incurred and provided in the present system of medical and healthcare services.
That’s it, period! All else are simply the mechanisms to that end.
December 25, 2009, 3:20 pmBrett Bellmore says:
“Completely”? Of course not. They don’t ignore the parts of it Congress and the President aren’t inclined to violate.
Are you deliberately ignoring the difference between making a mistake, and exhibiting bad faith? We’re not claiming the Court is incompetent. We’re claiming it’s corrupt. Being very smart and well educated helps you to avoid mistakes. It doesn’t do squat to keep you from being corrupt.
December 25, 2009, 3:33 pmDilan Esper says:
Brett:
Corrupt? Where’s the evidence? Who took payments? Who paid off Scalia? Who paid off Marshall?
Don’t you understand how unhinged you look when you say that 75 years worth of Supreme Court justices have been corrupt?
December 26, 2009, 12:03 amBrett Bellmore says:
I see, financial corruption is the only kind you can imagine. This is more, “Don’t play along, and you’ll never be a judge.” type corruption.
Don’t you see how unhinged you look when you claim that for 130 years we just didn’t notice that the Constitution authorized a Leviathan state?
December 26, 2009, 9:19 amAllan Walstad says:
Brett: Right, and the message doesn’t have to be delivered in so many words as a threat. Since the pols appoint the judges and the pols generally want more power, there will be a selection effect working against judges who would enforce Constitutional limits. Another factor is the collectivist tilt of the academic world, which anyone going into law will have to navigate for, what, 7 years? Yet another factor is the (understandable) reluctance of justices to overturn earlier decisions and with them entrenched government programs, together with the coup against the Constitution engineered by FDR with his threat to pack the Court and his 3+ terms in office that effectively allowed him to do just that.
I’ve hesitated to use the word “corrupt” precisely because it lends itself to interpretation in terms of under-the-table money payoffs, and then you have to deal with rather obtuse ridicule such as you just saw.
December 26, 2009, 10:07 amChris Travers says:
Allan:
I think the 17th Amendment has thoroughly tilted the balance of power away from the states as well. If the Senators, deciding whether to confirm an appointment, were accountable to the legislators instead of directly to the people, the political dynamics would be far better.
December 26, 2009, 3:36 pmAllan Walstad says:
Ditto that, Chris.
December 26, 2009, 5:25 pmDilan Esper says:
Don’t you see how unhinged you look when you claim that for 130 years we just didn’t notice that the Constitution authorized a Leviathan state?
I don’t think anyone in the 19th Century doubted that the Constitution authorized some pretty extensive powers to the federal government. The debates were whether certain TYPES of powers were conferred on it.
In any event, if the corruption is of the “go along” variety, is it your position that, e.g., Ronald Reagan required judicial nominees swear their allegiance to the Leviathan state in order to serve on the bench?
Seriously, this is crazy talk. Federal power expanded for 3 big reasons– the Civil War, the Great Depression, and Civil Rights, and one slightly smaller reason– the inexorable interconnection produced by the technological, communications, and transportation technologies of the 19th and 20th Century. It really isn’t any more complicated than that, and libertarians and conservatives who tell themselves cute stories about corruption are just lying to themselves.
December 26, 2009, 8:52 pmAllan Walstad says:
Neither he nor other recent presidents had to, Dilan, for reasons I explained earlier. Nobody who would seriously enforce the Constitutional limitations on the federal government is likely to get appointed to the Supreme Court. In fact, it’s amazing that Clarence Thomas made it.
Libertarians would certainly agree with you that your “Big Three” were very significant opportunities for expansion of federal power. Robert Higgs wrote a whole book, Crisis and Leviathan, on the theme of crises being exploited by statists to pursue their goals. Your reference to “crazy talk” appears simply gratuitous. If you have any actual arguments left, please make them now or close up shop for this thread.
December 26, 2009, 9:14 pmDilan Esper says:
Allan:
The problem is you are seeing something as one big conspiracy theory that was actually simply the normal operation of government.
There was no way that the problems of racial apartheid and the Depression were going to be dealt with without government intervention. The problem isn’t that this happened– it’s that libertarians lie to themselves that you didn’t need government to solve it and further lie to themselves that the Constitution must have adopted their policy preferences.
December 27, 2009, 2:26 amBrett Bellmore says:
What “big conspiracy”? We’re not describing a conspiracy, we’re describing the natural tendency of all government to grow in power, if not restrained. You might as well posit a conspiracy among H2O molecules to flow downhill.
Say you’re a President. Are you going to deliberately nominate somebody who’d stop you from doing something you really want to do? Say you’re a Senator: Are you going to confirm such a person? Do you really think either Senators or Presidents are unaware of the degree to which the maintainance and growth of their power relies on a compliant judiciary?
It’s a commonplace observation that no man is fit to be the judge of his own case. Why would you think it’s so much better that he nominate and confirm the judge of his own case? As I’ve said before, the greatest systematic flaw of the Constitution is that the federal judiciary’s composition is entirely up to federal officers. It guarantees a built in bias in favor of the federal government.
December 27, 2009, 6:47 amQuick Takes [Darleen Click] says:
[...] Republicans to lie back and think of England. Ilya Somin disagrees, whether Obamacare is called atax or [...]
December 27, 2009, 11:11 amAllan Walstad says:
I kept coming back to see if you would offer much of anything more substantive than a sneer. Apparently not. So be it.
December 27, 2009, 11:55 amDilan Esper says:
Allan:
I am not sneering. I think libertarian philosophy has a lot of validity. Indeed, specifically on the topic at hand, when you guys are talking about the importance of limiting federal power, you have important points.
My problem is simply that you guys are ignoring the obvious reasons why the changes that you decry happen. It isn’t that Lincoln, FDR, and LBJ were opportunists who took advantage of crises to assume dictatorial powers. It’s that they were confronted with untenable situations that required decisive action, and previous more limited conceptions of federal power had to give way for these things to happen.
Someone like Bill Clinton, for instance, probably believed in many of the things that FDR and LBJ did, but, not faced with the sort of crisis that they were, he didn’t expand federal power appreciably.
You guys think that there are a bunch of people looking to seize power at all costs, when instead you had intolerable problems that required a concentration of power to solve. And your ideology, while quite admirable, blinds you to the idea that bigger government could ever be necessary to solve a problem.
I hope that response is substantive and sneer-free, as it was intended to be.
December 28, 2009, 12:23 amBrett Bellmore says:
“If all you have is a hammer, everything looks like a nail.” If you’re a politician, when is it EVER going to look to you like the solution to a problem is limiting your own power? But, unless you take the rather absurd position that problems NEVER originate in the government, rather than outside it, it can’t be the case that crisis ALWAYS demands the government assume more power. Sometimes crisis is caused by the government. Sometimes it’s prolonged by the government. (Arguably, the great Depression was both.)
Look, you’ve explained, from one perspective, why the power grabs happened. We’ve explained, from a different perspective, why the people in those positions will always see power grabs as the answer to everything, whether or not they really are.
But explaining why somebody wants to do something doesn’t make it legitimate. Dillinger had a sensible reason for robbing banks: “That’s where the money is.” But that didn’t make robbing banks legitimate.
We have a Constitution which lays out a design for limited government. Given even a REAL reason for expanding their power, not just a crisis that makes a handy pretext, it’s still a Constitution they all swore an oath to uphold, and an oath they’re violating. Even faced with an emergency that confronts them with the choice of usurping power or the nation’s utter ruin, they could go back and legitimize the usurpation with an amendment.
But they don’t. They prefer a system that’s less confining than a Constitution treated as binding law. Who wouldn’t prefer to be above the law, if they could get it? But why should we make excuses for them? Understanding isn’t the same as accepting.
December 28, 2009, 6:37 amDilan Esper says:
We have a Constitution which lays out a design for limited government.
The rest of your post is the classic libertarian defense of his ideology, which is fine. I don’t agree with it, but I understand it.
But I want to focus on this sentence. The Constitution does, indeed, call for a limited government. But that doesn’t mean it calls for the same limits that libertarians think there should be on government.
For instance, even if we overturn extreme cases like Wickard and Raich, it is still the case that the commerce clause grants the federal government an awesome amount of power, and that power constantly increases as the economy gets more interconnected and more commerce crosses state lines. Put simply, it wasn’t really possible to, say, enforce a ban on gambling in the 19th Century without regulating a lot of local activity that I would argue is outside the scope of the commerce power. But it is possible now– because so much crosses state lines (including, notably, telephone lines and the internet).
Similarly, the spending power is quite broad, even if we assume that “promoting the general welfare” imposes some outer limits on it. As a result, the government can use spending decisions to regulate even purely local activities.
The point I am making is that you can’t simply say “the Constitution sets up a limited government” as an ipse dixit. Yes, federal power is supposed to be limited. Yes, some decisions went too far in permitting the federal government to go past those limits. But no, the Constitution does not set up a weak federal government. The Articles of Confederation did that, and they failed. The Constitution actually grants a heck of a lot of power to the federal government, and the increasing interconnection of society actually has the effect of increasing that power even more (and that is true even under the most limited constructions of the Constitution, e.g., Justice Thomas’).
We can have limited government in this country, and we should. But it isn’t going to be limited in the way you might like it to be, because the Constitution doesn’t enact libertarian philosophy– federal powers, although limited, are not narrow. They are broad.
December 28, 2009, 2:16 pmMark Hall says:
For additional discussion of this issue that refers more to actual judicial precedents, see these posts at Georgetown’s O’Neill Institute Blog:
http://oneillhealthreform.wordpress.com/2009/11/03/the-story-of-murphy-hope-or-death-knell-for-health-insurance-tax-protesters/
http://oneillhealthreform.wordpress.com/2009/11/18/does-hr-3962-make-being-uninsured-a-crime/
http://oneillhealthreform.wordpress.com/2009/10/14/%e2%80%9ctaking%e2%80%9d-legal-and-economic-liberties-seriously/
http://oneillhealthreform.wordpress.com/2009/10/20/more-on-taxation/
http://oneillhealthreform.wordpress.com/2009/10/08/is-it-a-tax-is-it-constitutional/
January 4, 2010, 9:34 amRPM says:
Purchase or Else: The Health Insurance “Tax”
Rodney P. Mock & Jeffrey Tolin (California Polytechnic State University, San Luis Obispo — Orfalea College of Business) have posted Purchase or Else: The Health Insurance “Tax”, 126 Tax Notes 224 (Jan. 11, 2010), on SSRN. Here is the abstract:
With the Affordable Health Care for America Act, H.R. 3962, passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”
January 22, 2010, 2:00 amThales says:
“Whatever its other virtues, the health care mandate certainly doesn’t qualify on this ground, since it clearly imposes net harms on many people, such as those who would prefer not to purchase health insurance, those who don’t wish to purchase coverage as broad as the mandate requires, and others.”
More broadly, any act of the government (or virtually any act by anybody) imposes net harms on someone–e.g. I would prefer that a military base not be located close to my home, and that the military not engage in adventurism having [in my view] nothing to do with “the common defense,” and if I’m a private employer with a wage and benefit scale similar to the military, such action forces me to compete and incur more costs than I would otherwise have to–net harm to me. How is health care different?
March 25, 2010, 4:49 pmProposed 28th Amendment to the United States Constitution - Page 2 - MBWorld.org Forums says:
[...] committing more yourself. You have been almost dead on with this page for this whole thread…..http://volokh.com/2009/12/24/does-co…-power-to-tax/ __________________ [...]
March 30, 2010, 3:41 pm