Taxation and Spending Clause

Arguing that there was no one prevailing original understanding of the Spending Clause and that differences existed among the Framers, both as to whether the Clause was an independent grant of power (as opposed to being cabined by enumerated powers) and as to the scope of the meaning of “general welfare.”

Arguing that “reading the [Taxing] clause as a grant of power largely unravels the entire scheme of enumerated power that is so carefully laid out elsewhere in the Constitution.”

Arguing that “[t]he first paragraph of Section 8 of Article I grants a single power, in which the allusion to spending is only a limitation on the power to tax” because, were the clause an independent grant of a general spending power, a semicolon (rather than a comma) would separate “[t]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,” and “to pay the Debts and provide for the common Defense and general Welfare of the United States.”

Arguing that a more searching judicial review of “special interest appropriations” is warranted by the “fiduciary” obligations imposed by the Constitution.

Arguing that “Madison feared that the necessary and proper clause would transform the taxation clause into a justification for achieving the common defense and general welfare by any instrument,” but that this sweeping interpretation “is in fact faithful to the text, to our values, and to our practices.”

Setting forth Madison’s argument that the words “provide for the common Defence and general Welfare” were an announcement of purpose and could not be the source of power independent of Congress’ enumerated powers.

Arguing that “the General Welfare Clause is more than a mere ‘non-grant’ of spending power” and is instead a “sweeping denial of power” meant to impose a fiduciary-like duty on Congress to forbear from favoring particular narrow interests.

Arguing that “federal subsidization of state governments is unconstitutional even under the broad interpretation of the Spending Clause, originally advanced by Alexander Hamilton, that prevailed in the 1930s.”

Arguing that “[t]he modern Congress’s exercise of its spending power regularly impinges in two general ways on the autonomy that the Framers sought to guarantee the states: through fiscal redistribution among the states and conditional federal spending.”

Arguing that “[t]he ‘general Welfare,’ for promotion of which the Constitution was created, is the welfare of the whole United States” and cannot justify spending that addresses only narrow needs or that is not applied “generally” across the United States.

Describing the Madison-Hamilton debate on the meaning of “general welfare” and arguing that the clause was originally understood as a limitation on power (precluding spending for the “special welfare of particular regions or states”), not a grant of power.

Arguing that the constructions of Joseph Story, Hamilton, and Madison all fail to comport with the text and structure of the Constitution and instead that the Spending Clause is an “intentionally redundant limit on the tax power.”

Arguing that the Spending Power is derived not from Article 1, Section 8, Clause 1, but from the Necessary and Proper Clause and the Article IV power of disposition of property of the United States.

Arguing that the conventional wisdom—that Hamilton won the Spending Power debate with Madison—is correct, but that the Court and commentators have systematically misunderstood Hamilton’s theory.