The Power to Spend

Competitive federalism, Michael Rappaport writes in his thoughtful post, is normatively attractive; and it would be a whole lot healthier with a “Madisonian” Spending Clause—that is, with a constitutional interpretation that limits the power of Congress to tax and spend to the enumerated powers. Under that interpretation, Mike R. says, Social Security and Medicare would be flat-out unconstitutional (and the country would be in much better financial shape). Likewise, the federal transfer programs that wreak havoc  on states and competitive federalism (especially Medicaid) would be unconstitutional. Yet Greve’s Upside-Down Constitution “misses the opportunity” to defend that understanding and instead articulates a “Hamiltonian” interpretation, which (in its strong version, which I believe to be correct) allows Congress, in its virtually unreviewable discretion, to spend money on just about anything it deems in the “general Welfare” of the United States. (The qualifiers are needed because spending must not violate other constitutional provisions. For an easy example, Congress can’t pay states to impose censorship.)

I take the point; but there’s an irony. UDC articulates a constitutional understanding and “construction” that, while anchored in the text, often goes beyond it, to the point of making text-focused originalists (like Mike R.) queasy . At the end of the day, though, I have to go to war with the Constitution we have, not with the Constitution I (or some other libertarian) would like. And for the life of me, I can’t find the “Madisonian” spending riff in the Constitution, or any reasonable construction thereof.

For starters, there is no “Spending Clause” in the Constitution, only a clause granting the power to “lay and collect Taxes [etc.]” and another to “dispose of” the “Property” of the United States. Perhaps, there is no explicit power to spend because Congress doesn’t really spend money; it only appropriates it (and unless it does, it can’t be “drawn” from the Treasury). More likely to my mind, the power to spend is an inherent legislative power (just as there are inherent executive powers and inherent judicial powers, like the stuff we teach as the federal common law of remedies). If that’s right, you can’t have another branch mess with the power. But even if it’s wrong and the power to spend follows, as is widely assumed, from the power to tax, the Madisonian understanding won’t work: the enumerated powers, in conjunction with the Necessary and Proper Clause, already confer the power to tax and spend for the enumerated purposes. (You can deny that, too.  Jefferson did at times: the power to “establish” post roads, he harangued Madison, is only the power to designate pre-existing roads, not to build or improve roads. But that’s strict construction on acid.) So the point of Article I, Section 8, Clause 1 must be to authorize taxing (and spending) beyond enumerated powers limits. Signed, Alexander Hamilton. Joseph Story. Etc. etc. Even the “Old,” anti-New Deal Court embraced this understanding: see Butler v. United States.

The most potent rejoinder comes in the form of this question: why would any sentient human carefully delineate the powers of Congress—and then countenance a legislative power to “spend around” the limitations? The answer, I think, is that the Founders thought the budget constraints should operate on the tax (and borrow) side, not the spending side. Hard-money guys to the bone, they never envisioned the power to float paper money that serves as the world’s reserve currency.

There is, in my estimation, a great deal of wisdom in the Founders’ perspective. But for the power to expropriate our lenders (foreign and domestic), the profligate spending would have ceased long ago. One of these days, it will.