WARNING: Do not break the law before, during, or after reading anything I mention.
The implied powers of the federal government, derived from those all too malleable clauses in the United States Constitution, have been unusually extended by our ancestors. Even some of our most notable and prominent contemporary public servants, on both sides of the party isle, continue to expand its scope at the expense of vested rights retained by the true proprietors of government. Within the U.S. Constitution there resides Four Horsemen of Congressional Power. Sometimes, they have left the barn with noble patriots riding tall in the saddle, with a firm and steady grip of the reins, striding toward a national purpose and advantage. At other times, though, the Four Horsemen have run aimlessly wild, possessing no legitimate rider, other than a phantom reason, digging its sharpened spurs deep into popular passions, while galloping into the dreamy sunset to eradicate manufactured threats to social tranquility and the public interest.
Congressional authority and power, always led astray by noble pursuits, primarily hinges on the following vagaries embedded in the U.S. Constitution: Necessary and Proper Clause, Commerce Clause, General Welfare Clause, and Tax and Spending Clause. Each is inextricably linked by a tenuous thread woven by legislative assemblies and judicial doctrine. Legislative, and also executive, authority must spring from a specific enumerated power or explicit clause mentioned in the constitution. These Four Horsemen have become a mystical quadrant of limitless authority and power. It is a difficult endeavor to proscribe an accurate delineation of constitutional boundaries, especially since the future holds unknown externalities, which may have no precedent in common law, or personal experience, to consult.
Throughout American history, several agents of radical social change - spurned on by the noblest intentions, under the most dire circumstances, particular to its own peculiar existence - have dug deep, and searched far and wide, into the magical chest of federal power, in an attempt to constitutionally legitimize, and publicly justify, all their legislative measures intended to eradicate naturally occurring social maladies, that can possibly never be prevented, or corrected, by any legislative act enacted by the human species.
Those enlightened framers, over two centuries earlier, erected this proven and resilient governing structure, buttressed it with various competing interests and powers, guided by sparse legal phrases, general political conceptions, and republican virtues, to best protect the ancient privileges and fundamental rights they retained as proprietors of government. They also created a framework that gave the federal authority the room to maneuver its activities according to the unforeseen contingencies that life presents us with. It is time to examine these four clauses that gave birth to most congressional power, if we, as proprietors of government, are to determine the best path for American citizens to preserve and extend Liberty for our generation, and posterity.
The Necessary and Proper Clause is the First Horseman of Congressional Power, and gives Congress the discretionary authority to enact legislation that will enable it to attend to the specific enumerated powers expressly granted by the U.S. Constitution. Congress has a responsibility to administer and carry out the national duties entrusted to it by the states and citizens. This clause carries with it implied powers. Congress has the supremacy to enact any legislation that facilitates the administration of its intended duties, and any incidentals that serve that purpose. Congress possesses full discretion to act within the parameters set forth in the constitution. As long as legislative measures intend to address a certain national function or duty attached to a specific enumerated power, then Congress acts in line with the constitution. For example, providing for a navy is a plenary power granted to Congress, but it would not be necessary or proper, during a time of peace, to impound and confiscate boats from citizens to provide for, or maintain, a navy. Only during a time of imminent danger, or some other extraordinary emergency, could Congress contemplate such an extensive and loose construction of the two clauses used in this example. Using a more immediate and realistic example, one could look at the latest legislative measure enacted by Congress to address certain issues regarding health care. It is not necessary and proper, according to this citizen’s constitutional interpretation, to penalize individuals that do not buy health insurance.
The Commerce Clause is another vagary that has been contentiously debated throughout American history. It is the Second Horseman of Congressional Power, and, quite possibly, the most ingeniously tortured clause of them all. It is plainly certain that Congress has complete jurisdiction over foreign commerce, and commerce with Native Americans, but it has also adopted a major role in domestic commerce, particularly in strictly local matters. The Commerce Clause is the perennial source of most congressional power exerted over states and citizens alike. Traditionally, Congress intended to prevent state governments from erecting barriers on the free flow of commerce “among” the states, interstate commerce. Most of Congress’s expansive role has been increased by a liberal construction of this particular clause. The word “among” suggests the commercial activity conducted across state lines was open to congressional jurisdiction. Every financial crisis America faced has brought with it an increased level of federal authority, and, at times, very necessary. Although, Congress has used the commerce clause to protect citizens from state interference, and the corrupting influence of national monopolies and destructive labor combinations, it has also interfered, unjustly, in purely state business, under the guise of some power derived from some clause.
Take the recent monstrosity of health care reform. The provisions pertaining to the mandate that individuals have to purchase insurance policies is a serious reach of federal power. Coercing citizens, through tax penalties, or any other form of fiscal intimidation or extortion, is not a necessary or proper practice in discharging specific enumerated powers. Instead of protecting private contracts, Congress seeks to force individuals into one. It is necessary and proper for Congress to address collusive commercial practices that prevent fair competition in a certain industry, say, insurance companies that combine in order to artificially inflate policy premiums, or doctors, hospitals, and lawyers from taking advantage of insurance companies. In instances such as these Congress, the courts, and the states, have some level of jurisdiction. It is a real stretch of constitutional interpretation, though, to find some implied power under the commerce or necessary and proper clauses that suggest to this citizen that Congress has a right to mandate the purchase of insurance policies.
The General Welfare Clause is the Third Horseman of Congressional Power, and another vague phrase that has assumed a life of its own over several decades, but really has been misconstrued and is virtually bordering on insignificance in legal discourse. It is not a purely academic exercise to expound upon these rather obscure, but powerful, clauses. The preamble of the U.S. Constitution is a sort of mission statement, expressing a summary of national duties the federal government is responsible for. Repeating these sentiments expressed in the preamble, the framers sought to express it again in article one section eight, the most significant section delineating Congress’s enumerated powers, which deal with the national debt, the common defense, and promoting the general welfare of the Union. These specific powers granted to Congress by the constitution, were thought to be national instruments that would attend to the high ideals expressed in the preamble. The federal government was commonly called the “general government” by some of the constitutional framers. It was thought that the federal head was only to attend to the general duties of the national Union. All of the enumerated powers were thought to contribute to the general welfare of the Union and all of its citizens. The general welfare clause should not be interpreted as a grant of a specific power, it is a general statement, and the powers expressly granted to Congress would contribute to the achievement of the mission, “to form a more perfect Union,” not form a perfect Union. Every explicit power - providing for a navy, and coining money - is an instance of providing for the general welfare of the Union and its citizens.
To come up with some legislative proposal that satisfies a contrived general welfare without directly being connected with an enumerated national power is unconstitutional on its face, and can be a dangerous extension of power and authority. Our generation has been handcuffed by some of our most notable ancestors, and current public servants, who bandied about fantastical manifestations of societal maladies, which eventually became the lawful pursuits, and special children, of misguided legislative majorities. It is blatantly unconstitutional to force thirty-two million citizens to purchase health insurance policies. It does not contribute to the general welfare, or the common national interest of all citizens. In fact, the only general welfare provided is to a very small number of citizens, which is an unfair practice that may even benefit some insurance companies and burden many individuals. The health care reform provisions that run contrary to the constitution will inevitably unleash a torrent of legal disputes, legitimately aimed at stripping that well intentioned, but politically misguided, law down to a palatable social instrument. It will surely lead to electoral defeats for the extreme elements that supported such an extensive stretching of constitutional boundaries and conceptions. An extensive construction of enumerated powers has steadily persisted for several decades, and it is time for the excesses to be curtailed by the true proprietors of government, those giving consent to be governed.
There is no coincidence the Fourth Horseman of Congressional Power, the Taxing and Spending Clause, is stabled so close to the General Welfare Clause. The two have basically run along side each other following the lead of the mighty Commerce Clause. Any revenue that Congress raises, under any legislative vehicle, aught to be dispensed on a specific function connected to an enumerated power, not some mystical venture somehow considered necessary for a contrived end born from the general welfare clause. This is the murky realm of discretionary authority and power that should be limited, and only rarely extended. If power and authority is expanded, it should be for a pressing national concern, enacted by a clear majority. The ultimate reason for revenues is to pay the national debts, provide for the common defense and the general welfare of the Union and its citizens. To extrapolate extensive implied and substantive powers from the taxing and spending clause, and the other three horsemen, is a favorite exercise that legislative assemblies and courts of justice are far too familiar with. To attach a monetary penalty to the property of certain individuals to be paid into the federal treasury for not purchasing an insurance policy is not only unnecessary and improper, it does not fall under the commerce clause, or benefit the general welfare of the whole nation, and certainly does not reside in a power to tax or spend.
There is possibly no other clause, perhaps its twin commerce clause, that has produced more constitutional confusion. Direct and indirect taxation is a dispute that rages forward. Congress needed the sixteenth amendment to tax income because it was obviously unconstitutional without one. It is a direct tax on those who have taxable income. To call it an indirect tax because it does not fall on every individual is a disingenuous ploy. Not only did our ancestors create a curious legislative prop given to them by popular demogogues, it has extended its pernicious reach into a myriad of income streams. Individuals, small and big businesses alike, have been saddled with a burdensome tax scheme that has extended to a point of taxpayer distress.
The ancient property rights and liberties we retain as proprietors of government have unnecessarily been curtailed by an expansive, and rather tortured, constitutional interpretation of congressional power. The time has come to re-evaluate the Four Horsemen of Congressional Power, and put them back into a regulated pasture to graze in. They need to be maintained with prudent care, kept in a secure stable, saddled with the rule of law, and the reins held tightly by a jealous electorate, so not to let them run wild in a borderless state of nature. This brief description is intended to distill a complex set of constitutional clauses into a digestible form of inquiry, so the parameters of congressional power and authority can be grasped more easily.
