The "Problem" with the Spending Power

[earl maltz]

I did not intend to suggest that the provision of Federalist 31 was in any
way determinative of the debate over the Spending Clauase, but merely
tonote that the Framers had considered the "crwoding out" problem noted by
Michael Masinter.  Sorry for the misunderstanding.

At 08:33 PM 8/24/01 -0700, you wrote:
>In response to Earl's citation of Federalist 31, what Hamilton was
referring to
>there was a concurrent taxing power, not the exercise of a power not
granted to
>the federal government.  I see nothing in Federalist 31 to suggest that
the courts
>would have no say if, for example, Congress levied a tax on state exports in
>violation of Art. I, sec. 9.  And a find quite a lot in Federalist 78 to
support
>the proposition that the limits of the Spending clause are every bit as
>enforceable by the courts as are the Constitution's other limits.
Limitations on
>legislative authority, Hamilton wrote, "can be preserved in practice no
other way
>than through the medium of courts of justice, whose duty it must be to
declare all
>acts contrary to the manifest tenor of the Constitution void."  And he
explicitly
>rejects the claim that the majority does not need judicial protection from
itself,
>because he distinguishes "the people" from "the legislature."  The latter are
>merely the agent of the former.  "[T]he courts were designed to be an
intermediate
>body between the people and the legislature in order, among other things,
to keep
>the latter within the limits assigned to their authority."  There is
absolutely
>nothing in Federalist 78, or in Marbury, that can be read as immunizing the
>Spending Clause from judicial review.
>
>John Eastman
>Chapman University School of Law
>
>earl maltz wrote:
>
>> 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
>> >>
>> >
>
>