B-Rob offers “A simple explanation as to why the [individual mandate] is constitutional,” via the general welfare clauses, which allow Congress to pass “all Laws” that work toward “promot[ing] . . . the general Welfare” (Article I section 8, and also the Preamble).
There are some significant problems with this, however. First, it beggars belief that my being compelled to purchase a product from a narrow, Congressionally approved list of products is “general” enough to be a part of the general welfare. If that is general enough, then perhaps I could purchase some other product and also further the general welfare. And if so, then I shouldn’t be compelled. Worse, if being directed to purchase an approved product is general, then what do we mean by particular? I had thought that an individual spending his own money was virtually the definition of particularity. If general welfare can control even this, then it can control everything. (Note that the general welfare clause might do better to support a single-payer system, perhaps, but not this.)
Second, even the law’s supporters haven’t relied too heavily on “general welfare” to defend compulsory insurance, in part because the general welfare clauses don’t necessarily do what most people seem to think they do. They are not a grant of plenary power to Congress. The general welfare is referenced twice in the Constitution, so let’s look at both of them.
The mention of general welfare in the preamble is to be dismissed, the Court has always held, because the Preamble does not confer any powers on any agents of government. (Think about it — the language of the Preamble applies equally to the executive. Could Obama simply have begun running his preferred health care system without congressional approval, because he has the power of general welfare? If so, why did he bother with Congress?) Mention of general welfare in the preamble is aspirational. It expresses a hope for what the entire system, as set forth in the operating clauses, will do: “This, we believe, will establish the general welfare.”
The general welfare clause in Article I section 8 reads, in its full context:
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;
Here “to provide for the… general Welfare of the United States” may well be a qualifier on the taxing power. If so, then it’s not a grant of power, but a very clear restriction on how some other power may be used. Taxes may be levied for the following reasons only:
- To pay debts;
- To provide for the common Defence; or
- To provide for the general Welfare.
This was James Madison’s view — taxes may not be levied for any other reasons, such as incentivizing or disincentivizing a behavior, punishing a disfavored group, or benefiting a particular industry or region. Although Madison’s interpretation is not the one that prevails today, the matter is still contentious enough that I suspect no one wants to hang Obama’s presidential legacy on an Oxford comma.
Much more curious to me is why, when faced with questions like this, so many are so eager to insist that the federal government has the power to do absolutely everything. When you offer a theory of federal power, ask yourself: Under this theory, what can’t the government do? If you can’t give an answer to this question, then it’s a very dangerous theory you are advancing.
I’ll likely have one or two more of these after lunch today, because there are several others that deserve further discussion.