The "Problem" with the Spending Power

[earl maltz]

Interestingly, as I noted in my article in the Chapman symposium on the
spending clause, the  possibility that txes levied  by one government might
effectively preempt another government from levying similar taxes was
explicitly noted in the Federalist Papers, with the conclusion that the
resolution of any such conflict was a matter for the political branches.
See, for example, Federalist No. 31.

At 08:46 PM 8/24/01 -0400, you wrote:
>Assuming, arguendo, that the clause implies limits, why does it follow
>that the responsibility for defining those limits should lie with courts
>rather than with the political branches.  Before the sixteenth amendment,
>structural constraints on congressional power to raise and spend money
>precluded Congress from broadly defining the limits of the clause. The
>sixteenth amendment removed those constraints, but nothing in the
>sixteenth amendment suggests that the courts should assume responsibility
>for defining the limits of the power.  The notion that the judiciary is
>more competent than the political branches to define what is general
>seeems to invest them with clerical rather than judicial powers.
>
>As others have noted, the seventeenth amendment removed yet another
>structural constraint on the power of congress to exercise the full extent
>of its powers by untethering the senate from the state legislatures.  That
>these structural changes should play out in ways detrimental to state
>power should come as no surprise, but even if they do surprise, they are
>no less a part of the constitutional structure.
>
>One need not (and I do not) question Marbury to question the
>justiciability of disputes over the limits of the spending clause.  The
>responsibility for defining those limits has always belonged to Congress,
>and we are free to impose our will through the ballot box when Congress
>gets it wrong.  Justice Scalia once noted that while we may need courts to
>protect minorities from the majority, we do not need them to protect the
>majority from the majority.
>
>Michael R. Masinter                     3305 College Avenue
>Nova Southeastern University            Fort Lauderdale, Fl. 33314
>Shepard Broad Law Center                (954) 262-6151
>masinter at nova.edu                       Chair, ACLU of Florida Legal Panel
>
>On Fri, 24 Aug 2001, John C. Eastman wrote:
>
>> In response to Michael Masinter's query about the 16th Amendment, I
don't find
>> anything in the 16th Amendment that abolishes the limitations of the
Spending
>> Clause (either the requirement that spending be "general" -- i.e.,
national --
>> and not merely local, or Madison's broader claim that only spending in
>> furtherance of the other Art. I, sec. 8 purposes was permissible).  Rather,
>> the 16th Amendment broadened the Taxing power by eliminating the
limitations
>> on it found in Art. 1, Sections 1 and 9.  Therefore, it was the Court, by
>> purportedly adopting Hamilton's position rather than Madison's, that
permitted
>> the expension of congressional spending power.  As I said before, I don't
>> think the Court's actual holding in Butler can be squared with its claim
that
>> it was adopting Hamilton's position, but even Hamilton believed the
clause had
>> limits.  In his Report on Manufactures, for example, Hamilton conceded
“that
>> the object to which an appropriation of money is to be made be General
and not
>> local.”
>> John Eastman
>> Chapman Univ. School of Law
>>
>>
>> Michael MASINTER wrote:
>>
>> > Are the growth of and the objection to the expansion of congressional
>> > spending power rooted in the sixteenth amendment?  Before the
ratification
>> > of the sixteenth amendment, congressional spending power was constrained
>> > by the apportionment and enumeration clauses.  The sixteenth amendment
>> > removed both constraints, leaving Congress free to raise and spend money
>> > largely as it saw fit, leaving aside expenditures which violated the
>> > establishment clause. Isn't the attempt to find enforceable judicial
>> > limits implicit in the spending clause really an attempt to undo some of
>> > the consequences of a constitutional amendment?  It may be that the
>> > sixteenth amendment unleashed the congressional power to soak up tax
>> > revenue that might otherwise have flowed to states, and by doing so the
>> > sixteenth amendment may well have dramatically altered the balance of
>> > power between the states and the national government, but the sixteenth
>> > amendment was just that -- an amendment to the constitution, not an ill
>> > advised decision of the Supreme Court.
>> >
>> > Bumper stickers calling for repeal of the sixteenth amendment are buried
>> > next to the John Birch Society.  Have they come back from the grave, this
>> > time as a call for judicial enforcement of limits divined from the
>> > spending clause?
>> >
>> > Michael R. Masinter                     3305 College Avenue
>> > Nova Southeastern University            Fort Lauderdale, Fl. 33314
>> > Shepard Broad Law Center                (954) 262-6151
>> > masinter at nova.edu                       Chair, ACLU of Florida Legal
Panel
>>
>