Brian Holtz wrote:

> The expansion of federal power in the twentieth
> century was hung mainly on the commerce and equal
> protection clauses. (However, I'm not sure how
> entitlement programs are excused; I'd have to
> investigate that.)

I was wrong. The Commerce and Equal Protection clauses are the justification
for nearly all federal regulation, but spending and entitlements have indeed
been excused under the Art. I Sec. 8 General Welfare phrase (it's not even a
clause). (Again, the "general welfare" mention in the Preamble is
non-binding.)

This is explained quite well on the Social Security Administration's own web
site (http://www.ssa.gov/history/court.html), which brazenly admits that
Roosevelt's 1937 court-packing plan is what intimidated the Supreme Court
into reversing its interpretation of the Commerce Clause. However, the court
had already mentioned in passing in 1936 (US v. Butler, by Justice Roberts,
http://www.tourolaw.edu/patch/Butler/) that Congress can spend for the
general welfare:

VVVVVVVV begin quote VVVVVVVVV

They can never accomplish the objects for which they were collected, unless
the power to appropriate is as broad as the power to tax.

AAAAAAAAA end quote AAAAAAAAAA

Obviously false. For example, if the federal government wanted to reduce
wine consumption, it could tax wine imports, but use the revenue to help
finance e.g. the military.

VVVVVVVV begin quote VVVVVVVVV

The necessary implication from the terms of the grant is that the public
funds may be appropriated 'to provide for the general welfare of the United
States.' These words cannot be meaningless, else they would not have been
used. [..]

AAAAAAAAA end quote AAAAAAAAAA

The reasoning is obviously flawed. If any and all spending for "the general
welfare" is already authorized, then much of the rest of Section 8 is
redundant. The rest of Section 8 authorizes provision of the postal system,
army, navy, and militia -- each of which the framers clearly considered as
contributing to "the general welfare".

VVVVVVVV begin quote VVVVVVVVV

Since the foundation of the nation, sharp differences of opinion have
persisted as to the true interpretation of the phrase. Madison asserted it
amounted to no more than a reference to the other powers enumerated in the
subsequent clauses of the same section; that, as the United States is a
government of limited and enumerated powers, the grant of power to tax and
spend for the general national welfare must be confined to the enumerated
legislative fields committed to the Congress. In this view the phrase is
mere tautology, for taxation and appropriation are or may be necessary
incidents of the exercise of any of the enumerated legislative powers.
Hamilton, on the other hand, maintained the clause confers a power separate
and distinct from those later enumerated is not restricted in meaning by the
grant of them, and Congress consequently has a substantive power to tax and
to appropriate, limited only by the requirement that it shall be exercised
to provide for the general welfare of the United States. Each contention has
had the support of those whose views are entitled to weight. This court has
noticed the question, but has never found it necessary to decide which is
the true construction. Mr. Justice Story, in his Commentaries, espouses the
Hamiltonian position. We shall not review the writings of public men and
commentators or discuss the legislative practice. Study of all these leads
us to conclude that the reading advocated by Mr. Justice Story is the
correct one. While, therefore, the power to tax is not unlimited, its
confines are set in the clause which confers it, and not in those of section
8 which bestow and define the legislative powers of the Congress. It results
that the power of Congress to authorize expenditure of public moneys for
public purposes is not limited by the direct grants of legislative power
found in the Constitution.

AAAAAAAAA end quote AAAAAAAAAA

So what is the sum total of Roberts' argument? 1) The general welfare phrase
can't be meaningless. 2) Hamilton, Story, and unnamed others argued that it
authorizes any spending that one could claim is for the general welfare. 3)
The Court has "studied" their arguments, "shall not review" them, but found
them "correct".

That's it. That's how the highest court in the land reversed the 147-year
assumption that the federal powers of the purse are enumerated in Art. I Sec
8, and decided instead that they are limited only by the ability of
politicians to declare expenditures as being for "the general welfare".

Roberts hilariously proceeds to put a fig leaf on his reasoning by
pretending it's bold to draw a line against any spending that is not for the
"general welfare":

VVVVVVVV begin quote VVVVVVVVV

Monroe, an advocate of Hamilton's doctrine, wrote: 'Have Congress a right to
raise and appropriate the money to any and to every purpose according to
their will and pleasure? They certainly have not.' Story says that if the
tax be not proposed for the common defense or general welfare, but for other
objects wholly extraneous, it would be wholly indefensible upon
constitutional principles. And he makes it clear that the powers of taxation
and appropriation extend only to matters of national, as distinguished from
local, welfare.

AAAAAAAAA end quote AAAAAAAAAA

As bad as the above reasoning is, the greater sin is exposed in what
follows:

VVVVVVVV begin quote VVVVVVVVV

[..] we naturally require a showing that by no reasonable possibility can
the challenged legislation fall within the wide range of discretion
permitted to the Congress. How great is the extent of that range, when the
subject is the promotion of the general welfare of the United States, we
need hardly remark. But, despite the breadth of the legislative discretion,
our duty to hear and to render judgment remains. If the statute plainly
violates the stated principle of the Constitution we must so declare. We are
not now required to ascertain the scope of the phrase 'general welfare of
the United States' or to determine whether an appropriation in aid of
agriculture falls within it. Wholly apart from that question, another
principle embedded in our Constitution prohibits the enforcement of the
Agricultural adjustment Act. [..]

AAAAAAAAA end quote AAAAAAAAAA

Here Roberts blatantly violates the sacred principle that the Court should
use the narrowest grounds to make its decisions. US v. Butler in fact
overturned the Agriculture Adjustment Act on other grounds, and so what
Roberts did was throw open the door to "general welfare" socialism merely
via obiter dicta (i.e. "an opinion voiced by a judge that has only
incidental bearing on the case in question and is therefore not binding.")

Brian Holtz
Libertarian candidate for Congress, CA14 (Silicon Valley)
http://marketliberal.org