There is No Independent Spending Power: A Response to Mike Ramsey
Mike Rappaport
Mike Ramsey recently criticized my view that the Constitution does not confer any independent spending power. While Mike and I have been disagreeing about this for some time, I thought I would explain my view.
The Constitution provides “The Congress shall have Power 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; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
Mike reads this as conferring the power on Congress to spend for the general welfare – what I shall call “the spending interpretation.” I read it as conferring the power to tax on Congress – what I shall call “the tax interpretation.” I agree that both interpretations have weaknesses, but I believe the weaknesses in the spending interpretation are much, much greater.
1. The spending interpretation finds in this clause not merely the power to tax, but also the power to spend for the general welfare. This spending power is an enormous power, arguably one of Congress’s most important powers. Yet, it is not stated in a straightforward way. Instead, it is found by implication. This counts strongly against the spending interpretation. Lawgivers do not hide elephants in mouseholes.
If the enactors had intended to confer an independent spending power, it would have been much more straightforward to say, “Congress shall have the power to spend for the general welfare” (or if you will, to provide for the general welfare). But the Constitution does not say that. It says you can tax in order to provide for the general welfare, the common defense and to pay the debts of the U.S. If you were intending to confer an independent spending power, it is unlikely you would write it this way.
By contrast, the tax interpretation makes sense of the way that the clause is written. The Framers were attempting to confirm that the taxing power could not be used to regulate, but only to raise funds. Otherwise, the taxing power could have been used to regulate intrastate commerce (by imposing very high taxes intended to discourage intrastate activities) and to assert other nonenumerated powers under the guise of the taxing power. When the Constitution used the language “to pay the Debts and provide for the common Defence and general Welfare of the United States,” it was saying that the funds need to be employed in the exercise of Congress’s other enumerated powers.
Mike argues that “to pay the Debts and provide for the common Defence and general Welfare of the United States” does not say “the enumerated powers.” True enough. And the language would have been clearer if it had said “the enumerated powers.” But this weakness of the tax interpretation is much less significant than the weaknesses of the spending interpretation.
When one reflects upon it, the language “to pay the Debts and provide for the common Defence and general Welfare of the United States” is not a bad way to paraphrase Congress’s overall enumerated powers. After all, Congress’s enumerated powers generally concern the general welfare and the common defense.
Moreover, in using this language, the Framers were not acting on a blank slate. The Articles of Confederation provided that “All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury.” I interpret this language in the Articles, as did David Curie, as allowing spending only for Congress’s enumerated powers. It would seem that Mike has to interpret this language to confer on the Congress under the Articles the full power to spend for the general welfare. Given the weakness of the national government under the Articles, it would be quite surprising for Congress to have had that power.
2. Another problem with the spending interpretation is that it assumes the Framers would have conferred a significant power – the spending power – with only the very general and vague limitation of being for “the general welfare.” This vague language has been read, not unreasonably, as permitting the courts only very limited authority to strike down spending as not being in the general welfare.
But that is not how the Constitution’s enumerated powers normally read. They do not as a rule use vague language like “the general welfare.” Instead, they use more determinate language such as “to regulate commerce among the several states” or “to raise and support armies.” This provides additional reasons not to read language stating the purpose of taxes as conferring an independent power to spend money for the general welfare.
3. Yet another problem with the spending interpretation is that it involves significant and peculiar redundancies. The spending interpretation reads “to pay the Debts and provide for the common Defence and general Welfare of the United States” as providing independent spending authority. This is oddly redundant. The clause immediately adjacent to the taxing/spending clause allows Congress “to borrow Money on the credit of the United States.” Clearly, this power includes the authority to pay the debts from that borrowing. So it is not clear why the taxing/spending clause needed to provide that authority Several other clauses grant authority to Congress to conduct the common defense. So again it is not clear that the tax/spending clause adds anything.
The only language where there might not be complete (or virtually complete) redundancy is “the general welfare.” Why would the clause be written to contain two redundancies and only one new source of authority? Instead, given the two redundancies, it makes sense to read “the general welfare” as also redundant and as a reference to the other enumerated powers in the Constitution.