Interstate commerce and “general welfare”...that’s the whole ball game…so far.
We’ve covered some of the most impactful cases in Supreme Court history regarding interstate commerce and general welfare. Now, to be sure, we’re not aiming to review the Court’s handling of these issues in their entirety so much as to get a lay-of-the-land regarding their tendencies on these two topics. Our treatment of the Court’s appetite for allowing Congress and The President to pass legislation and enforce laws (and as we’ll discuss later, regulations), simply because they intersect with commerce and “general welfare”, helps us to get our bearings.
If we’re using precedent as waypoints, it’s entirely logical to take the next step on the trajectory on which the Court has launched us. The problem is, that direction is not the same direction in which the founders pointed us. Smart people have dealt with these issues, and many of them have come to the opposite conclusion, and that has more to do with what their ideals tell them than what the people who created this nation wrote and meant. Of course, those arguments, at some point, made some headway in areas where the Constitution may appear vague. Anytime that seeming vagueness appears to require interpretation, we open ourselves up to determining that it says something it doesn’t say, or means something it doesn’t mean.
I’d suggest that WHAT the constitution says (and for that matter, any legislation that exists) is just as important as WHY it says it. Anybody endeavoring to come to a right decision about what is written in our founding documents is duty-bound to explore the attitudes and sentiments, the passions and priorities, of their authors.
Because we haven’t taken that approach consistently throughout our history, we find ourselves giving more credence to the interpretations than to the originals, and that’s a dangerous business. That’s how you end up with departments you shouldn’t have, spawning agencies that shouldn’t exist, creating regulations that aren’t laws, and intruding on the day-to-day lives of Americans in ways, and to a degree, that the framers would never have approved.
The upshot here is that liberty is squelched as government grows.
Let’s look at some of the particulars of the seven departments we haven’t discussed, yet.
The most important thing that we can do in this undertaking is to ensure that we’re constantly referring to the Constitution itself, particularly the enumerated powers (Article 1, Section 8), to determine whether or not the department(s) being considered fall within the scope of the authority that has been granted to Congress.
As you read through my musings on each department, please continually skip back over to the enumerated powers to see if you can find something that firmly declares that the creation and existence of the department is constitutional.
One last note before we dig in. Some of the work that these departments, and their corresponding agencies, do actually does benefit the public. Some of the work they do is good. Some of the work they do is absolutely essential. My contention, however, is that it is NOT the business of the federal government to do this particular work, and that the federal government has no clear authority to engage in these activities.
The Department of Veterans Affairs
Okay…caveat: I could probably get onboard with some kind of interpretation of Congress’s power to “raise and support Armies” that includes that “support” being extended, on an ongoing basis, to the men and women who have served in those armies. In fact, in 1818, Congress passed the first of four Revolutionary War pension acts which were designed to allow veterans and their widows to receive payments from the federal government in six-month intervals. So, we can assume that those who were around during the revolution and founding understood that there was something constitutional about what they were doing.
Presumably, those payments were being distributed directly to eligible persons and could be used for basic living expenses, medical needs, etc…
According to the department’s website, the modern VA “offers education opportunities and rehabilitation services and provides compensation payments for disabilities or death related to military service, home loan guaranties, pensions, burials, and health care that includes the services of nursing homes, clinics, and medical centers”.
These are valuable services that represent much-needed benefit. This is certainly the kind of reaction that I’d hope a grateful nation would want to extend to those who have given life and limb in their efforts to keep us safe. The nation, though, in my view, is the people themselves.
I’m not entirely sure that I see clear authority in the enumerated powers for Congress to establish and maintain a department that provides some of these services…and…if we’re tying the whole enterprise to supporting armies, I’d suspect that anything that does fit into the enumerated powers should rightly be handled by the Department of Defense.
The Department of Agriculture
Here we have a department, comprised of 29 separate agencies, operating out of 4500 locations across the country, and employing more than 100,000 individuals. The USDA was founded in 1862, when Abraham Lincoln signed legislation into law that created what he called “The People’s Department”, and is tasked with providing “leadership on food, agriculture, natural resources, rural development, nutrition, and related issues based on public policy, the best available science, and effective management.”
The closest you could get to finding, in the constitution, something related to the various tasks undertaken by the USDA would be to take a long leap and say, “Agriculture is science, and science is in the enumerated powers.”
Except it’s not…not really.
One of the enumerated powers states:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
This authority simply means that Congress is to promote science through rights. This is a reference to patents. That’s it.
The justification for The Department of Agriculture, then, is interstate commerce and general welfare.
Sure, the USDA does work that benefits American’s equally, but their reach, as we’ve discussed previously, can impact individuals growing crops, for their own consumption, and operating within the confines of a single state. So, the interstate commerce clause is flimsy at best.
Furthermore, “general welfare”, as we’ve determined, is a generic description of the reasons for which Congress can choose to levy taxes. The enumerated powers clarify what the general welfare is, and agriculture is decidedly not a part of those powers.
Apart from all of those factors, the department operated for decades prior to the implementation of the current tax structure. So, from a budgetary perspective, it’s hard to imagine just how this department (already on thin Constitutional ice) can require nearly $200 Billion dollars, annually, to operate.
The Department of Labor
The mission of the United States Department of Labor is:
To foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.
Like the Department of Veterans Affairs, these efforts can provide real benefit to lots of Americans. That, however, is not the question we’re trying to answer. The real question is, “Does the federal government have the authority to concern itself with these things, and to create laws and regulations Americans must obey, under threat of punishment?”
When we ask this question, and search the enumerated powers for our answer, we come up short, again. There’s nothing in the Constitution that indicates that Congress has the power to delve into working conditions, wages, and/or benefits.
The only possible attempt at justification for the existence and perpetuation of The Department of Labor is something loosely related to the pragmatist’s interpretation of general welfare and commerce. Perhaps the Hamiltonian view is more to the point. If you’re going to embrace this kind of meaning in the Constitution, you have to believe, in this case, and all of the others being dealt with in this section, that the federal government needs to be large and powerful and involved in all things. With that view, you might interpret Congress’s legitimate taxing authority, to “provide for…the general Welfare”, and its power to regulate interstate commerce, to mean that they have carte blanche to create departments and agencies, and deliver unlimited and undefined services. If so, you’d just need to convince a small panel of people (The Supreme Court) that any given project or task is “good for the general welfare”...or maybe that it is connected in some way to buying or selling something…in order to do, literally, anything that the government wants to do.
The Department of Housing And Urban Development
HUD was created as a cabinet-level department in 1965 via The Department of Housing and Urban Development Act. That’s the official start of the department, but it’s not the beginning of the federal government’s foray into housing.
The entrenchment of the federal government into the world of housing started with the Wagner-Steagall Housing Act which was signed into law in 1937, thus establishing the United States Housing Authority, the purpose of which was to provide loans for low-cost housing projects across the country.
As is obvious in every other department we’ve considered in this section, Congress (the federal government as a whole), has no constitutional authority to meddle in the housing market in any way, shape, or form, if we exclude the odd “general welfare” interpretation.
The enumerated powers don’t include anything related to housing. There’s no allowance for Congress to be involved in making loans to the public. There’s certainly no mandate to wade into or influence housing markets.
The effort to establish the government foothold in the housing market, and many other areas of life, can be directly attributed to the Franklin D. Roosevelt and his “New Deal” policies. The entire history of this kind of overreach from the federal government represents this “New Deal”. The new deal was designed to supplant the old deal.
“What old deal?” you ask.
The Constitution!
Roosevelt got the name for his set of programs from an advisor named Stuart Chase, a far-left economist who had written an article in The New Republic just days before Roosevelt accepted the 1932 Democratic nomination for president. In that article, A New Deal for America: The Road to Revolution, Chase closed with this: "Why should Russians have all the fun remaking a world?"
In his acceptance speech, Roosevelt incorporated Chase’s ideas, declaring:
“Throughout the nation men and women, forgotten in the political philosophy of the Government, look to us here for guidance and for more equitable opportunity to share in the distribution of national wealth... I pledge myself to a new deal for the American people. This is more than a political campaign. It is a call to arms.”
These men, and those who shared their views, weren’t concerned, in the least, with the ideas of liberty and freedom. They weren’t interested in discerning a path forward that was in alignment with the principles laid out in our founding documents…and they said it out loud!
Effectively, their stance was, “Talk about the philosophies of the founding fathers if you want. Spend your time discussing liberty and small government. You go ahead and consider how to keep government out of people’s lives. We’re not interested in what the country was built to be or in those ideals. This government is going to get involved in the lives of the people. We’re going to directly interfere with their lives to give them what we think is best.”
The Department of Health and Human Services
The US Department of Health and Human Services, HHS, was founded in 1953 and originally referred to as The Department of Health, Education, and Welfare. It was reconstituted as HHS in 1980, and is currently staffed by 80,000 federal employees, across 13 divisions.
I know, I know…when we start tossing around numbers, everybody’s eyes glaze over. Take a sip of coffee or Red Bull, slap yourself in the face, and pay attention.
According to their own website and information:
the Department of Health and Human Services (HHS) had $2.73 Trillion distributed among its 13 sub-components.
Folks, The Congressional Budget Office projects $6.2 Trillion in federal spending for 2023, and $2.73 Trillion of it will be spent through a department that is constitutionally questionable, at best.
So what does HHS do? Their mission statement says:
It is the mission of the U.S. Department of Health & Human Services (HHS) to enhance and protect the health and well-being of all Americans. We fulfill that mission by providing for effective health and human services and fostering advances in medicine, public health, and social services.
Health and Human Services’ entire mission uses “general welfare” as a crutch. Fostering advances in medicine, public health, and social services are not tasks that Congress is charged with or given the authority to do.
Governments are instituted among men to secure rights, and while each individual has the right to life, it is not in the purview of the federal government to foster advances in medicine and deliver social services. In essence, the pursuit of healthcare, by any individual American, is merely a consumer act, and cannot legitimately be underwritten or subsidized by the government.
The only role Congress should rightly play, with regard to healthcare, is to ensure that in the economic activity of seeking care, individuals and groups are not unjustly excluded from exercising the option to purchase and receive care.
I want all people who need care to get it. I want experts to study and invent and perfect medical procedures. I just don’t want the government involved, and neither did the founders.
From a government perspective, health may be a state, county, or municipal issue, but it’s certainly not a federal one.
The Department of Energy
The oil embargo of 1973 sent shockwaves around the world that drove prices through the roof and limited supply to levels that had a direct impact on the American economy. When President Jimmy Carter took office, the US was still reeling from the effects of the embargo.
President Carter’s answer to the problems created by the embargo was to ask Americans to conserve energy and to shift our national focus to renewable energy and machines that used fuel more efficiently. These are reasonable approaches. Our stability was threatened by limited access to essential fuel, and that limitation was outside of our control. Limiting use, and need, to reduce dependence on foreign powers is wise, and exploring alternative energy sources to insulate ourselves from such disastrous future occurrences just makes good sense.
Unfortunately, The President chose a federal government solution that, in accordance with our observations thus far, the federal government doesn’t have the authority to implement.
Before I get too far into my treatment of this department, I should be sure to clarify that I do recognize a president’s authority to take emergency action when a scenario directly threatens our national security. I do take issue with the notion that presidents can declare emergencies and extend them indefinitely, but that’s for another conversation.
From a strictly constitutional perspective, Congress does not seem to have the authority to create and maintain a department designed to concern itself with energy production and/or challenges and their corresponding technology solutions
The enumerated powers don’t allow for any action on behalf of Congress to address these concerns, except, again, for the very generous interpretations of commerce and general welfare that we’ve seen applied in every other case.
The Department of Education
And now, the end is near, as Sinatra sang. The US Department of Education is the last department we’ll be dealing with, and it’s just as unconstitutional (in my view…with fidelity to the purpose of government and the declared legitimate powers defined by the constitution) as the other six departments discussed here.
The DoE suggests that it’s existed in some form or another since 1867, and that it was created to “collect information on schools and teaching that would help the States establish effective school systems”.
Well, what business is it, of the federal government, to collect information on schools and teaching to help states establish effective school systems? We’ll come back to that in a minute, but you already know the answer.
Congress officially established the Department of Education as a cabinet-level department in 1980, and the department’s website talks about itself this way:
Today, ED operates programs that touch on every area and level of education. The Department's elementary and secondary programs annually serve nearly 18,200 school districts and over 50 million students attending roughly 98,000 public schools and 32,000 private schools. Department programs also provide grant, loan, and work-study assistance to more than 12 million postsecondary students.
That’s massive reach…unprecedented involvement and impact on the lives of Americans, and unless we sing a chorus of “general Welfare”, we can’t come anywhere close to cobbling together some authority in the constitution that says that Congress gets to care about local education in any way.
The biggest problem with the department of education is that it’s a tool for the federal government to distribute money, at the neighborhood level, and attach to those distributions lots of strings. Money, in this case, equals control. It gives the federal government the ability to say, “If you take this money, you have to teach this. If you take this money, you have to say this. If you take this money, you have to build this.”, and unfortunately, all-too-many schools, colleges, and universities line up to take the money.
Ultimately, it’s up to each school and community to determine whether they want the money badly enough to go along with whatever the government/department says. In essence, the department only has the “authority” to distribute money. If a school says, “We don’t want it”, they don’t have to take it, and then, by extension, they’re free from the dictates and demands of the department.
That seems at least slightly sinister, but the bigger question is whether or not Congress has any legal mandate to involve itself in education. You won’t be surprised to know that I believe that no such mandate exists in the constitution.
In the end, all of these departments have the same flaw, they’re based on an objectively incorrect interpretation of Congress’s constitutional powers. So, their existence is illegal.
As I’ve mentioned before, each of these entities has multiple (sometimes dozens of) subordinate agencies.
We don’t have the capacity to deal with each agency, one-by-one, but we will deal with some of them in future sections.
Next, though, we’re going to start to take a look at the haphazard and illegitimate ways in which Congress, and these departments, perpetuate an environment in which department-level rules and regulations can be implemented with the force of law…without the need for any of that pesky voting by elected officials.