Some commentators have suggested that the law requiring individuals to buy health insurance (the individual mandate) would be upheld if it had been cast from the beginning as a tax rather than a penalty for failing to participate in commerce. A tax, according to the commentators, need not be tethered to the Commerce Clause because the power to tax is separate and distinct from the power to regulate commerce. The implication of that argument is that the power to tax is unlimited in its scope and purpose.
This is just another way of trying to grant unlimited power to the federal government. And yet, the Constitution specifically limits and enumerates the powers of the federal government — specifically, the subjects upon which Congress may legislate. (The “living Constitution,” government by executive order, and legislation by judicial fiat are “liberal” ways of getting around the limitations of the Constitution.) If follows that the power to tax is limited to taxation for the affirmative purposes enumerated in Article I, Section 8:
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;
To borrow Money on the credit of the United States;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
As I have shown (“The Unconstitutionality of the Individual Mandate“), Obamacare (along with Social Security, Medicare, Medicaid, and much else) is not comprehended in the power to regulate interstate commerce, from which it follows that the individual mandate is not a necessary and proper law.
What about the “general Welfare”? May not Congress levy taxes for the purpose of promoting it? That power seems to be unrestricted, or so “liberals” would have it.
But the admonition to “provide for … the general Welfare,” is not a license to do anything and everything within the imagination of congressional majorities. It is in fact a further limitation on the enumerated powers of Congress.
The General Welfare Clause, as it is known, means that when Congress executes any of its enumerated powers, it is supposed to execute them in a way that is beneficial for the whole of the United States, as opposed to favoring particular States or regions. Were Congress to take the Constitution seriously, American taxpayers would not suffer the abominations known as “earmarks” and “pork barrel” legislation.
My view is that of James Madison, who explained the General Welfare Clause in the course of the debate about the ratification of the Constitution:
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. (Federalist No. 41)
The more expansive view — of an unlimited power to tax (and spend) for any purpose — did not prevail until the New Deal era, when the U.S. Supreme Court lost its way.