Taxing and Spending Clause
The Taxing and Spending Clause, Article I, Section 8, Clause 1 of the United States Constitution, grants the federal government of the United States its power of taxation. While authorizing Congress to levy taxes, this clause permits the levying of taxes for two purposes only: to pay the debts of the United States, and to provide for the common defense and general welfare of the United States. Taken together, these purposes have traditionally been held to imply and to constitute the federal government's taxing and spending power.
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Background
One of the most often claimed defects of the Articles of Confederation was its lack of a grant to the central government of the power to lay and collect taxes. Under the Articles, Congress was forced to rely on requisitions upon the governments of its member states. Without the power to independently raise its own revenues, the Articles left Congress vulnerable to the discretion of the several state governments—each state made its own decision as to whether it would pay the requisition or not. Some states were not giving Congress the funds for which it asked, either by paying only in part, or by altogether ignoring the request from Congress. Without the revenue to enforce its laws and treaties, or pay its debts, and without an enforcement mechanism to compel the states to pay, the Confederation was practically rendered impotent and was in danger of falling apart.The Congress recognized this limitation and proposed amendments to the Articles in an effort to supersede it. However, nothing ever came of those proposals until the Philadelphia Convention.
Powers granted
The power to tax is a concurrent power of the federal government and the individual states. The taxation power has been perceived over time to be very broad, but has also, on occasion, been curtailed by the courts. United States v. Butler stated that the clause also granted "a substantive power... to appropriate", not subject to the limitations imposed by the other enumerated powers of Congress.Power to tax
This power is considered by many to be essential to the effective administration of government. As argued under the Articles, the lack of a power to tax renders government impotent. Typically, the power is used to raise revenues for the general support of government. But, Congress has employed the taxing power in uses other than solely for the raising of revenue, such as:- regulatory taxation – taxing to regulate commerce;
- prohibitive taxation – taxing to discourage, suppress, or even exterminate commerce;
- obligation taxation – encouraging participation in commerce via taxation on those not participating in interstate commerce; e.g. the Patient Protection and Affordable Care Act, "Chief Justice Roberts concluded in Part III–C that the individual mandate must be construed as imposing a tax on those who do not have health insurance";
- tariffs – taxing as a means of protectionism.
Implicit power to spend
With the power to tax implicitly comes the power to spend the revenues raised thereby in order to meet the objectives and goals of the government. To what extent this power ought to be utilized by the Congress has been the source of continued dispute and debate since the inception of the federal government, as will be explained below. However, interpretations recognizing an implicit power to spend arising specifically from this clause have been questioned, with the Necessary and Proper Clause being suggested as the actual source of Congress's spending power.While recognizing that the federal government is one of limited and enumerated powers, the Supreme Court has held that Congress may incentivize state governments via appropriations of federal funds to adopt and enforce federal policy goals that otherwise would lay beyond the powers of the federal government directly to impose. In South Dakota v. Dole, the Court upheld a federal law withholding a portion of highway funds from states that did not raise their minimum legal drinking age to 21.
Limitations on taxing power
Several Constitutional provisions address the taxation and spending authority of Congress. These include both requirements for the apportionment of direct taxes and the uniformity of indirect taxes, the origination of revenue bills within the House of Representatives, the disallowal of taxes on exports, the General Welfare requirement, the limitation on the release of funds from the treasury except as provided by law, and the apportionment exemption of the Sixteenth Amendment. Additionally, Congress and the legislatures of the various states are prohibited from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax by the Twenty-fourth Amendment.Origination Clause
The Constitution provides in the Origination Clause that all bills for raising revenue must originate in the House of Representatives. The idea underlying the clause is that Representatives, being the most numerous branch of Congress, and most closely associated with the people, know best the economic conditions of the people they represent, and how to generate revenues for the support of government in the least burdensome manner. Additionally, Representatives are regarded the most accountable to the people, and thus are least likely to exercise the taxing power abusively or injudiciously.General Welfare Clause
Of all the limitations upon the power to tax and spend, the General Welfare Clause appears to have achieved notoriety as one of the most contentious. The dispute over the clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare".The two primary authors of The Federalist Papers set forth two separate, conflicting interpretations:
- James Madison, in Federalist 41, advocated the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.
- Alexander Hamilton, in Federalist 34 and his 1791 Report on Manufactures, argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.
While Hamilton's view prevailed during the administrations of Presidents Washington and Adams, historians argue that his view of the General Welfare Clause was repudiated in the election of 1800, and helped establish the primacy of the Democratic-Republican Party for the subsequent 24 years. This assertion is based on the motivating factor which the Kentucky and Virginia Resolutions played upon the electorate; the Kentucky Resolutions, authored by Thomas Jefferson, specifically criticized Hamilton's view. Further, Jefferson himself later described the distinction between the parties over this view as "almost the only landmark which now divides the federalists from the republicans".
File:Joseph Story.jpg|thumb|right|upright=0.7|Associate Justice Joseph Story
Associate Justice Joseph Story relied heavily upon The Federalist as a source for his Commentaries on the Constitution of the United States. In that work, Story excoriated both the Madisonian view and a previous, strongly nationalistic view of Hamilton's which was rejected at the Philadelphia Convention. Ultimately, Story concluded that Thomas Jefferson's view of the clause as a limitation on the power to tax, given in Jefferson's opinion to Washington on the constitutionality of the national bank, was the correct reading. However, Story also concluded that Hamilton's view on spending, articulated in his 1791 Report on Manufactures, is the correct reading of the spending power.
Prior to 1936, the United States Supreme Court had imposed a narrow interpretation of the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co., in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause. This narrow view was overturned in 1936 in United States v. Butler. There, the Court agreed with Justice Story's construction, holding the power to tax and spend is an independent power; that is, the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare. The Court wrote:
The tax imposed in Butler was nevertheless held unconstitutional as a violation of the Tenth Amendment reservation of power to the states.
Shortly after Butler, in Helvering v. Davis, the Supreme Court interpreted the clause even more expansively, disavowing almost entirely any role for judicial review of Congressional spending policies, thereby conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to Congress's own discretion. In South Dakota v. Dole the Court held Congress possessed power to indirectly influence the states into adopting national standards by withholding, to a limited extent, federal funds where a state did not meet certain conditions required by Congress. Following that ruling, the Court later held by a 7–2 vote in National Federation of Independent Business v. Sebelius that Congress conditioning a state's receipt of the entirety of its federal Medicaid funds on whether said state elected to expand its Medicaid program in accordance with the Patient Protection and Affordable Care Act was an unconstitutionally coercive use of Congress's spending power.
To date, the Hamiltonian view of the General Welfare Clause predominates in case law. Historically, however, the Anti-Federalists were wary of such an interpretation of this power during the ratification debates in the 1780s. Due to the objections raised by the Anti-Federalists, Madison was prompted to author his contributions to The Federalist Papers, attempting to quell the Anti-Federalists' fears of any such abuse by the proposed national government and to counter Anti-Federalist arguments against the Constitution.
Proponents of the Madisonian view also point to Hamilton's limited participation in the Constitutional Convention, particularly during the time frame in which this clause was crafted, as further evidence of his lack of constructive authority.
An additional view of the General Welfare Clause that is not as well known, but just as authoritative as the views of both Madison and Hamilton, can be found in the pre-Revolutionary writings of John Dickinson, who was also a delegate to the Philadelphia Convention. In his Letters from a Farmer in Pennsylvania, Dickinson wrote of what he understood taxing for the general welfare entailed:
The idea Dickinson conveyed above, explains University of Montana Law Professor Jeffrey T. Renz, is that taxing for the general welfare is but taxation as a means of regulating commerce. Renz expands upon this point: