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Moved from "Taxing and Spending Clause"

This article, formerly "Taxing and Spending Clause", was moved to General Welfare Clause because, firstly, the former gets only 3,130 Google hits and the latter gets 2,270,000 27,300. Moreover the article's own first reference supports the new name as primary, and doesn't even recognize the old one. Squee23 19:22, 28 October 2007 (UTC)

I think you left off a quotation mark, but 27,000 is still much larger than 3,000. Publicola 20:04, 28 October 2007 (UTC)

Whoops! Squee23 21:58, 28 October 2007 (UTC)

I have to disagree. This article would be better under it's original name, the Taxing and Spending Clause, as the General Welfare Clause only refers to the qualification placed on the spending power, whereas the TaSC designation covers the whole of the clause. While the GWC is the more controversial subject within the clause, it's best to name the article after the clause as a whole, and not name it based solely on one part. Foofighter20x (talk) 10:22, 5 December 2007 (UTC)

I'm not so sure WP:NC agrees. Next time, though, please move the talk page too. MilesAgain (talk) 00:17, 3 January 2008 (UTC)

See section below. Foofighter20x (talk) 14:17, 22 January 2008 (UTC)

You can not simply swap redirects and copy-paste to move a page because that looses the article history, which violates the GFDL; you have to use the "move" tab. When that doesn't work, or the move is contentious as this one clearly is from above, you have to go to WP:RM and follow the instructions there. Given the google hit count on the two names, I don't think you have much of a chance, so I "moved" the article back the way you did. FarmBoi (talk) 09:42, 22 January 2008 (UTC)

Yet when you search for "court packing" on Google, you get Judiciary Reorganization Bill of 1937. I suppose I should also point out, for all you Misplaced Pages policy hawks, that there's an overarching policies you seem to be forgeting: IGNORE ALL RULES and ASSUME GOOD FAITH. Yes, more people have probably heard about the GWC than TSC, just as they've probably heard the name Bill Clinton more than William Jefferson Clinton. Will they be searching for the more familiar terms? Yes. Does that mean we should build this encyclopedia around those names? Sort of. What we should do is build pages with the commonly known names which redirect readers to the academically proper names (i.e. Court Packing takes you to the Judiciary Reorganization Bill of 1937 that is the source and object of the scheme). Besides, WP:NC is a general policy, not a universal one. As such, it's not meant to apply in every single case. Now, GWC ("to pay the Debts and provide for the common Defence and general Welfare of the United States;"), by itself, is not going to convey to a reader without knowledge of the topic the surrounding context of the clause. As such, it's better to have it expounded in the TSC article, since on its own it's incomplete and too short for Misplaced Pages standards. Thank you and have a nice day. :) Foofighter20x (talk) 05:56, 23 January 2008 (UTC)

Also, I find it a little hypocritical that a Misplaced Pages policy hawk who says a rename/move should be discussed first would then unilaterally undo a move. Sort of violated your own principle there, eh? Be consistent in what you do, otherwise you just come off as a petty tyrant. Unilaterally moving it back assumed bad faith. Also, no one complained about the move for over three weeks. Now, all of a sudden, it's an issue again, even after there is ample reason to retain the articles in their present configuration (aside from the history merge requirement, of which I did not realize) until TSC becomes too long and GWC can be cut loose. Foofighter20x (talk) 06:22, 23 January 2008 (UTC)

I have to agree with FarmBoi here, per Misplaced Pages:ANI#History_merge_needed. The article should be moved back to what it was before the cut-and-paste move (General Welfare Clause) and a request should be made at WP:RM that people can discuss. MilesAgain (talk) 13:06, 23 January 2008 (UTC)

Significance

While this article currently provides basic information about what the clause is, it could be improved by explaining its significance. As I understand it, the expansion in interpretation of this and the Interstate Commerce Clause is the main legal basis by which the US federal government has grown in centralized power over the last century or so. This article would be better if it got into the context of the 1930s debates over the Constitution and the New Deal. -Kris Schnee 02:22, 5 November 2007 (UTC)

Moved GWC back to TSC

The entire clause per se is named TSC. The GWC is the following only: "to pay the Debts and provide for the common Defence and general Welfare of the United States;" and the Uniformity Clause is only: "but all Duties, Imposts and Excises shall be uniform throughout the United States." If the you guys want to have the GWC as its own article, fine. But don't move the whole TSC to the GWC article. They are not the same thing. GWC is but a component of the TSC; what you guys are doing is like redirecting an article about Automobiles to an article about Tires. I recommend that if you want the GWC to be its own article that you move only the GWC part of this article, and then summarize (but not remove) the GWC portion of the TSC article. The reason I put GWC in this article is that I felt it was too short to be on its own, and it also has a big ifluence on the operation of the TSC. Foofighter20x (talk) 14:17, 22 January 2008 (UTC)

You are really not allowed to move things this way -- if you obscure the article's history you violate the GFDL which requires attribution. The way things stand now, you will need to have an admin do a history merge :( MilesAgain (talk) 14:46, 22 January 2008 (UTC)

Nothing in the GFDL article you linked to requires attribution. ??? Nor is any attribution requirement for Misplaced Pages authors required on the site per the Text of the GNU Free Documentation License. Foofighter20x (talk) 16:50, 22 January 2008 (UTC)

It's section 4(I) among other places. See Misplaced Pages:How to fix cut-and-paste moves. MilesAgain (talk) 17:50, 22 January 2008 (UTC)

Ah... I stand corrected. Sorry for the misunderstanding. I'll keep this in mind for the future. Foofighter20x (talk) 01:52, 23 January 2008 (UTC)

Why I keep removing the AoC part from the GWC portion

The Articles of Confederation have zero influence on how interpretation and application of how the Constitution operates. Also, the scope of the AoC and the Constitution are different. In the former, the object of the GWC was the States, as that is who formed the General government at the time: the state governments. The object of the latter is both the state and the people. One of the big advantages of the Constitution over the AoC is that it allowed the general government to go directly to the people via taxation instead of having to beg the states and hope they got what they asked for. Also, the definition welfare has changed since 1787. The closest we can get is the 1828 first edition of Webster's. In that dictionary, there were two given meanings, one that has since fallen out of use and almost out of memory. As the article was without the AoC portion was fine in that it 110% accurately reflected standing case law. The part about the AoC is really just trivia and doesn't add to the meaning today. In fact, I'll bet money that if we all dug into what General Welfare was understood to mean in the contempory case law of the day back in 1787, Madison's construction was the accepted version. Foofighter20x (talk) 14:17, 22 January 2008 (UTC)

References

1. The Articles of Confederation

Requested move

The following discussion is an archived discussion of the . Please do not modify it. Subsequent comments should be made in a new section on the talk page. No further edits should be made to this section.

The result was no consensus. Vassyana (talk) 08:10, 17 February 2008 (UTC)

Taxing and Spending Clause → General Welfare Clause — The article has been moved back-and-forth four times now, with both regular and cut-and-paste moves. "General Welfare Clause" is by far the more common name per Google hits, as well as the source cited in the first paragraph of this article. —MilesAgain (talk) 14:29, 23 January 2008 (UTC)

Survey

Feel free to state your position on the renaming proposal by beginning a new line in this section with *'''Support''' or *'''Oppose''', then sign your comment with ~~~~. Since polling is not a substitute for discussion, please explain your reasons, taking into account Misplaced Pages's naming conventions.

Support

• Strong support for move, as requester, and per discussion below. MilesAgain (talk) 14:29, 23 January 2008 (UTC)
• Extremely strong support as per my comments below. Corvus cornix_talk 17:53, 23 January 2008 (UTC)
• Strong support What it's usually called. This is the first time I've heard this phrase, including several constitutional histories of the United States. Septentrionalis PMAnderson 18:49, 25 January 2008 (UTC)

  Please note also that there are two separate places in the Constitution which refer to "the general welfare" (the other being in the Preamble). bd2412 T 20:36, 25 January 2008 (UTC)

Oppose

• Strong oppose. bd2412 T I base this on three considerations:

1. First, a "general welfare clause" is a common provision of any Constitution (or even a city charter, and in some cases of an individual statute) that provides for the general welfare of the people thereunder. See, e.g.:
   • "Home rule charter cities simply include a general welfare clause or "all powers clause" within the provisions of their charters."
   • "Alabama adopted a new Confederate Constitution, which "affirmed that the states were 'sovereign and independent' and omitted a general welfare clause. "
   • "Minneapolis is a home-rule-charter city with a general welfare clause, and as such has some power to enact traffic regulations..."
   • "The fact that the legislature has the ability to do pretty much anything it wants under the State's general welfare clause, as Representative Valihura told me, just doesn't make it right for them to walk in and stomp on the property rights of restaurant, casino, hotel, and bar owners."
   • "Under the provisions of municipal charters which are known as the general welfare clauses, a city, by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and the best and highest interests of the municipality."
   • "Under its general welfare clause a municipality may regulate the sale of milk". William Wheeler, The Law of Pure Food and Drugs, National and State (1912) p.135.
   • "There was also a general welfare clause allowing the parties to present evidence on 'ny other factors which reasonably relate to the public health, safety and welfare.' Id. (quoting Milwaukee Code of Ordinances § 90-5-8(c-1))." Daley v. Gorajec, 2007 U.S. Dist. LEXIS 57842 (S.D. Ind. 2007).
   • "Section 34 grants the General Assembly authority to pass laws 'providing for the comfort, health, safety, and general welfare of all employees...' Lima argues that the general welfare clause grants the General Assembly authority to pass laws addressing 'employment issues directly related to the working environment.' The general welfare clause states laws may be passed 'providing for the comfort, health, safety, and general welfare of employees.'" City of Lima v. State, 2007 Ohio 6419, P26 (Ohio Ct. App. 2007).
   • § 5(S) of the Maryland Constitution is "a 'general welfare' clause that had been broadly construed to permit charter counties to legislate beyond the powers expressly enumerated in the Express Powers Act". Tyma v. Montgomery County, 369 Md. 497, 511 (Md. 2002).
   • "Although police powers are not without limitation, Pennsylvania courts have recognized that municipalities have the power to enact legislation aimed at protecting the health, safety, and welfare of citizens under the general welfare clauses contained in municipal codes". Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020, 1024-1025 (Pa. Commw. Ct. 2004)).

   Thus, if we move to that title, eventually we'd have to disambiguate it. General welfare clauses are ubiquitous - a Lexis search of cases decided in the past ten years turned up 18 hits for "general welfare clause", at least half of which referred to state or city provisions. For the same period, there are 46 hits for "taxing and spending clause", all of which refer to Art. I, § 8, of the United States Constitution.

2. Second, the "general welfare" provision is only part of the "Taxing and Spending Clause". Having the article at this title would be sort of like having "Bill of Rights" at "First Amendment".
3. Third, there is no "general welfare" power. General welfare is one of the purposes towards which Congress can use its power of taxing and spending.

• In response to your concern #1, I have re-tabulated the hit count below to include only those articles which also include "United States Constitution" or as with "U.S." or "US". I have also tabulated the uses by the U.S. government itself. As you can see, the ratios are still heavily weighted in favor of "General Welfare Clause." In response you your concern #2, you have not explained why sources such as this or this refer to the entire clause as the GWC and do not even list the TSC as a synonym. Your concern #3 doesn't seem to have a lot to do with this article, which is not about a power. Would there need to be an "establishment power" for there to be an Establishment Clause? MilesAgain (talk) 17:20, 23 January 2008 (UTC)

• The point of the copious sources cited in the first instance is not merely that some hits may refer to a different "general welfare clause", but that a "general welfare clause" is a generic concept, whereas there is only one "Taxing and Spending Clause". Also, the Establishment clause grants no powers whatsoever - there is therefore nothing more logical to call it. The Taxing and Spending Clause grants the power to tax, and the power to spend; that is its chief purpose. bd2412 T 17:55, 23 January 2008 (UTC)

• Extremely strong oppose. Foofighter20x (talk) 03:20, 24 January 2008 (UTC)

1. You guys shouldn't fall into the trap of the using Google as the basis of your argument: "If all you have is a hammer, everything looks like a nail." BD2412 using Lexis Nexis is further proof that reliance upon Google as the almighty Golden Hammer of naming conventions is really just half-assed, lazy thinking.
2. Read the whole article. The TSC is the "what"; as such, its article is about taxation, the power of Congress to tax, and all the other clauses that affect the operation of that power. The GWC is more of a "why" (to pay and provide) and "how" (commonly and generally; i.e. non-specifically) in terms of using the power; it does not grant any power in and of itself; i.e. it is a qualification on the taxing power, not the power itself.
3. Maybe the reason the phrase General Welfare Clause shows up more on Google is because all the mentions of it are in the context of how government spends money (the "how"). No one doubts the federal government's power to tax (the "what"), so talking about the Taxing and Spending Clause is academic and not really controversal, and thus is less likely to generate hits.
4. Also, as BD and I have both said, the GWC is a compentent part of the TSC. Moving this back to GWC would be like refering to a mousetrap as a spring-coiled-wire. There are more parts to it that just that...
5. BD2412 put it best: General Welfare is a generic concept and could potentially require disambiguation. In fact it seems that an article about the GWC should talk about how it is used for ambiguous applications of law and appropriations and is essentially used as a legislative "catch-all." However, I highly doubt that such a article could anywhere include by any form of tortured logic how the phrase "to pay the Debts and provide for the commmon Defence and general Welfare of the United States" is in any way a grant of power to tax. Like I said just above this: the article is about taxation.
6. As I've written above and below, nothing is stopping anyone here from writing an article about the General Welfare Clause specifically. I've even offered a third way out of this argument: have the general welfare clause article be about what it's used for: things like internal improvements, social programs, and pork-barrel spending by Congress, and as generic catch-alls by state and local governments. Summarize the GWC portion of the article and it's affect on tax law, and provide one of those handy little Main Article links at the top of the GWC section.

• Oppose - Based on BD2412 comments, I oppose the move. It appears to me that the broad term of "general welfare clause" may be better served by a disambig page or perhaps a redirect with this article having an otheruses tag. We also should look at this in a Global way. If we have so many uses of of the term, it is likely that other countries use it as well. The common use would also explain some of the counts in Google. Morphh 21:15, 25 January 2008 (UTC)

Discussion

Any additional comments:

The article's own source for its name ("Constitutional Clauses & Their Nicknames") is from the Washington University Law Library, and it doesn't even mention "Taxing and Spending Clause".

The Misplaced Pages:Naming conventions policy states, "Generally, article naming should prefer what the greatest number of English speakers would most easily recognize," and there are no specific conventions that apply in this case. MilesAgain (talk) 14:42, 23 January 2008 (UTC)

Yeah... GENERALLY - a: in disregard of specific instances and with regard to an overall picture... Guess what that means! It doesn't apply in ALL cases!! :p Foofighter20x (talk) 02:20, 25 January 2008 (UTC)

Note that the exceptions are listed below in WP:NC. As I said, none of them apply. MilesAgain (talk) 06:19, 26 January 2008 (UTC)

Duly noted. But it still doesn't help your argument any: TSC and GWC aren't the same thing. As BD2412 explained before, what you advocate is like naming a page The First Amendment and then having it be about the entirety of the U.S. Bill or Rights. Foofighter20x (talk) 13:35, 26 January 2008 (UTC)

The terminology "taxing and spending" clause is a conservative stalking horse. It's completely POV and not a neutral phrasing whatsoever. Corvus cornix_talk 17:54, 23 January 2008 (UTC)

The clause states "The Congress shall have Power To lay and collect Taxes" - is the Clause POV? bd2412 T 18:22, 23 January 2008 (UTC)

1. It a conserva-who-whatcha-ma-horse??! *gasp* Let's look.
   • Answers.com calls it the Taxing and Spending Clause at the top of it's own article... You can even ignore the Misplaced Pages mirror below it.
   • So does the CRS Annonated Constitution at Cornell Law School (Scroll down to Taxpayer Suits... It's in the second paragraph of that section)
   • And it's called that by the courts in case law...
   • ...after case...
   • ...after case... (Hein v. Freedom From Religion Foundation, Inc.)
   • ...after case... (Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.)
   • ...after case... (Higganbotham v. State of Oklahoma)
   • ...after case. (Bowen v. Kendrick: refered to in this last one as the taxing and spending power.)
2. As I said above, the GWC is not the whole clause, but only this portion: "to pay the Debts and provide for the common Defence and general Welfare of the United States"; just as the Uniformity Clause is only: "but all Duties, Imposts and Excises shall be uniform throughout the United States;". The Taxing and Spending Clause is the entirety of all the clauses contained therein.
3. No one has countered the suggestion above that the GWC be made its own article (though it'd only be of stub length) and summarize what's in this article with a link to it.
4. Seems someone has revealed their own POV bias. Good job, Corvus! *thumbs up* Foofighter20x (talk) 02:42, 24 January 2008 (UTC)

Uh less heat, more light please. You can say the same thing without being provocative. I'll just stay a general observer and point out that there hasn't really been any solid evidence presented in favor of moving and a lot of solid evidence has been presented against it. Google is only an extremely poor indicator of where an article might be, and should be ignored in the face of better evidence. The naming conventions do say "in cases where the common name of a subject is misleading, then it is sometimes reasonable to fall back on a well-accepted alternative." That seems to apply here. - Taxman 15:25, 25 January 2008 (UTC)

For the law and history buffs: John Marshall Law Review, Vol. 33, 1999 : What Spending Clause? (Or the President's Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the United States Constitution Just the abstract supports the assertion I've made that the GWC is only the following phrase: "to pay the Debts and provide for the common Defence and general Welfare of the United States"; Foofighter20x (talk) 20:51, 25 January 2008 (UTC)

So far: 3 votes to 2 (with an additional lawyer and one of the leaders of the WikiTaxation Project--Taxman--strongly leaning toward opposing the move). A tie so far, really, with all the facts and reasoning skewed heavily in favor of those opposing. As for their last vote for moving the article, the voter cites many volumes without naming them. I wonder if that kind of reasoning would stand up in court. Show us the evidence, please (aside from Google, which has already been discredited). Foofighter20x (talk) 20:39, 25 January 2008 (UTC)

Misplaced Pages is not a courtroom. We shouldn't Wikilawyer. Septentrionalis PMAnderson 21:21, 25 January 2008 (UTC)

Agreed. And, after all, the article will contain the same information no matter what the title is (and thanks to the magic of redirects, people looking for either title will be led to the right place). bd2412 T 21:35, 25 January 2008 (UTC)

Seems the both of you misunderstand me. Yes, Misplaced Pages has rules. However, Misplaced Pages's own policy is that they are simply guides and not meant to be rigidly enforced. My contention immediately above is that, of those voting, if anyone mentions any references, they should provide them for all concerned parties here to review. Merely referring off-handedly to "several constitutional histories" honestly doesn't cut it. Just like articles require citation for verification, so do claims in discussion; while it's not a rule, I hardly think it's asking too much. With the anonymity of both the internet and Misplaced Pages, I'm not going to just take your word for it. Sorry. Show me the data. If you aren't going to do that, then concede the point. Foofighter20x (talk) 23:46, 25 January 2008 (UTC)

Also, I resent the fact that the first thing people are doing here is being dimissive of my points by claiming I am Wikilawyering, and then offering nothing to counter my assertions. Seriously, that's like playing the race card. I don't get it. It makes the whole discussion political and personal when the goal should be improvement of the site. So, I'll reiterate two of the points I made above:

1. The article is about Congress' power to tax and spend in general, with inputs from other parts of the Constitution and a synoptic history of the provisions (where there is an actual story to tell). This is an accurate reflection of the article name and people's understanding of what an article about the TSC would entail.
2. GWC is relegated more to the spending side of the equation--(edit: as evidenced here)--and has little to do with the actual taxation part of it. The longer this fricker-frass goes on, the more clear it becomes that this needs to be two seperate articles, each with a different focus. Foofighter20x (talk) 00:15, 26 January 2008 (UTC)

Here is another consideration:

In Ferrocarril Central Argentino c/Provincia de Santa Fe, 569 the Argentine Court held that the General Welfare clause of the Argentine Constitution offered the federal government a general source of authority for legislation affecting the provinces. The Court recognized that the United States utilized the clause only as a source of authority for federal taxation and spending, not for general legislation...

— Jonathan M. Miller, The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practice as Authority in Nineteenth Century Argentina and the Argentine Elite's Leap of Faith, 46 Am. U.L. Rev. 1483, 1562 (1997).

As that article points out, where a clause containing "general welfare" language appears in the constitutions of other countries (and even of U.S. states), it is usually read to grant the nation an inherent power to regulate. However, the U.S. clause does not act in this manner. The only thing the clause does is to give Congress the power to tax and spend. bd2412 T 07:35, 26 January 2008 (UTC)

I just found another cite in support of what I've been saying.

• ARTICLE: The General Welfare Clause and the Public Trust: An Essay in Original Understanding; 52 Kansas Law Review 1 (Nov 2003)

Thanks... Foofighter20x (talk) 18:16, 14 February 2008 (UTC)

• • In light of that, I've started a stub on the concept at General Welfare clause. Cheers! bd2412 T 20:32, 14 February 2008 (UTC)

The above discussion is preserved as an archive of the proposal. Please do not modify it. Subsequent comments should be made in a new section on this talk page. No further edits should be made to this section.

Use of the terms "General Welfare Clause" and "Taxing and Spending Clause" by SCOTUS

Using our free Westlaw service, I found that GWC was used in 11 and TSC in 9 SCOTUS cases. Here are the cases with citation and year: GWC

• Buckley v. Valeo, 424 U.S. 1 (1976)
• Flast v. Cohen, 392 U.S. 83 (1968 dissenting opinion)
• Fortson v. Morris, 385 U.S. 231 (1966)
• Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275 (1958 overturned but not for use of the GWC term)
• Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448 (1957)
• Silesian Am. Corp. v. Clark, 332 U.S. 469 (1947)
• Helvering v. Davis 301 U.S. 619, (1937)
• U.S. v. Butler, 297 U.S. 1, (1936)
• Water, Light & Gas Co. of Hutchinson, Kan. v. City of Hutchinson, 207 U.S. 385 (1907)
• City of Richmond v. Smith, 82 U.S. 429 (1872)
• Smith v. Turner, 48 U.S. 283 (1849)

TSC

• Hein v. Freedom From Religion Foundation, Inc., 127 S.Ct. 2553 (2007)
• DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)
• Bowen v. Kendrick, 487 U.S. 589 (1988)
• Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)
• Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)
• U. S. v. Richardson, 418 U.S. 166 (1974)
• Holtzman v. Schlesinger, 414 U.S. 1316 (1973)
• Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)
• Flast v. Cohen, 392 U.S. 83 (1968 majority opinion)

Buckley v. Valeo appears to be a goose in the pattern. Flast v. Cohen is the only to contain both and that is divided between the dissent by Harlan and the majority by Warren. Legis Nuntius (talk) 22:51, 6 February 2008 (UTC)

Thanks for looking into this. I maintain that the article should not be moved, but instead split between the two titles in that GWC should focus on spending and its typical employment as a phrase conducive to governmental expansion, and the rest of the article should remain as is (i.e. about taxation and its restrictions). Foofighter20x (talk) 23:24, 6 February 2008 (UTC)

Compare the 18 Supreme Court cases referencing the "taxing and spending power" to the zero for Supreme Court cases referencing the "general welfare power" (compared again to the 38 state supreme court decisions mentioning the "general welfare power, none of which refer to the U.S. Constitution). bd2412 T 23:55, 6 February 2008 (UTC)

I can't believe that I missed this discussion - where was I?! In any case, I would have joined BD and Foo in the most strenuous opposition. As I recently noted in comments below, the U.S. Congress does not have the power to make law for general welfare; the U.S. Government is a government of enumerated powers. Calling this a "general welfare clause" would be completely inaccurate. State Constitutions have general welfare clauses, precisely because, purusant to the framers' express intent, only state governments have the power to regulate for the general welfare, i.e. "police power." Non Curat Lex (talk) 21:36, 6 December 2008 (UTC)

Question on earmarks

Just a quick question. From reading all this, it makes me wonder how earmarks are constitutional, as they are not spending for the general welfare, but spending for specific welfare. For example, if the fed is allowed to give some particular state money to build a museum, could they not also give that state money to subsidize the cost of shipping some particular good? In giving that subsidy, however, they are creating a situation that parallels a tax on exports, by making one state's goods cheaper, while another's will stay the same price. Thus using the earmark mechanism, they clearly undermine the intent of the constitution, if not the wording. Is it an issue of the people not receiving earmarks not having the legal standing to sue?75.82.133.73 (talk) 16:46, 5 December 2008 (UTC)

I didn't include it in the article since my sources are silent on the subject. I'll see what I can pull up on Lexis-Nexis, however, it's finals week next week, so I may be a little distracted. :) Foofighter20x (talk) 16:51, 5 December 2008 (UTC)

You assume that "using the earmark mechanism, they clearly undermine the intent of the constitution." I disagree.

First, as a prelimary matter of fact, these (much maligned) earmark spending packages account for a miniscule percentage of the Federal Government's enormous annual spending. Whether you like earmarks or don't like earmarks, a reasonable person would have to admit that they are not a big deal.

Second, as a matter of law, earmarks are "spending for the general welfare." In any case, the "general welfare" clause is not interpreted as a significant limit on what ends the government may spend.

What you must realize is that general welfare" does not mean literally, that the government has to spend for "general" purposes as opposed to "specific" ones. Not only is that interpretation not supported by any authority, a critical analysis would reveal that such an interpretation would be impossible to apply.

On top of that, it misuses the wording. , "general welfare," in Constitutional law, is a term of art which is synonymous with "police power," which basically means, in a theoretical way, state power, as a whole - as in, the U.S. Government does not have the power to legislate for the general welfare, but it does have the power to spend for the general welfare. It can legislate only within the enumerations of Art. I, s. 8, but it can spend for any legitimate purpose.

Who decides legitimacy of spending? Generally NOT a constitutional court. Congress can spend money for any purpose that any reasonable legislator could find advances a legitimate governmental purpose (aka rational basis review), unless the spending violates a specific separation of power or individual right, in which case, heightened scrutiny may apply, whether it's an earmark, or any other kind of distribution.

The reason why Congress has more power to spend than to legislate was concomitant with the founders' notions of the separation of powers. The power to legislate was enumerated, not general welfare power, because in our early, fragile union, the several states (a confederacy at the time) needed to preserve that primary local lawmaking power for themselves. By keeping it local to the states, the Federal government could not become too overbearing as to be a danger to individual autonomy. However, they saw fit not to put the same limit on spending. They figured that Congress could not harm the separation of powers much just by spending, even if they spent unwisely. Moreover, it allowed Congress to, if necessary, create some national law beyond its enumerated powers, through conditional spending. With conditional spending, Congress could intrude a bit on state lawmaking -- but only with the state's consent.

Even though this had nothing to do with earmarks, the result is the creation of an extremely broad, almost unlimited power. Because this power to spend is so broad, earmarks are not unconstitutional.

Foo, if you want to research that further, go ahead. It's interesting stuff. I think that explanation will jive with what Ides & May have to say in the E&E, and anything else you will find in the mainstream. Non Curat Lex (talk) 21:14, 5 December 2008 (UTC)

Thanks for the explanation. I'm not really sure I have an opinion on earmarks, one way or another. I agree that they are not important practically to balancing the budget. As it seems earmarks have been treated as constitutional by tradition, it certainly would be interesting to include an explanation as to why.(especially considering the other lengthy constitutional explanations in the article). I feel like you've done a good job explaining why congress is held to have general discretionary spending powers. Any thoughts on the example that I proposed, where congress uses a non-uniform subsidy to accomplish the regulatory aim of a non-uniform tax and/or an export tax? I have a gut-feeling that a constitutional court might give congress much less leeway in such a situation.75.82.133.73 (talk) 04:00, 7 December 2008 (UTC)

One other thing to note, while Courts have not generally decided on the constitutionality of Congressional spending, that does not necessarily mean that it *is* constitutional, at least not in a common law system like the United States. As I noted in my original post, there may be no party with standing to sue. Nonetheless, the section of this article on the General Welfare Clause is what got me wondering about the constitutionality of earmarking. It states that the Hamiltonian view of the Clause notes that: "that spending is an enumerated power that Congress may exercise independently to benefit the general welfare...provided that the spending is general in nature and does not favor any specific section of the country over any other." Also, the Butler decision itself notes: "he powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare."

This would seem to call the constitutionality of earmarks into question. (P.S. I'm not trying to get into the earmarks issues of this last election to further some conservative agenda, my interest is purely academic curiousity.)75.82.133.73 (talk) 04:23, 7 December 2008 (UTC)

It's not really about justiciability or that the court hasn't decided cases on the subject. It's that what they have decided is that, except for conditional spending, even if you have standing, a very low standard applies - the court won't second guess the Congress beyond "rational basis," except in the case of conditions. And even in the case of conditions, they won't second guess, as long as the conditions pass a low-level test for propriety. And even if they don't, they STILL won't second-guess much.

Re: Justiciability -- this is a problem for spending and it could be a way to address the "general welfare" clause. HOWEVER no case has held that interpretation of the clause is "textually comitted" to congress and therefore a "nonjusticiable political question." Likewise, the court has clearly held that the power is not "plenary." Congress gets wide discretion, but not absolute discretion. Such a holding would be possible, but it's never happened, and now it would represent a big change.

In fact, the court has extended its broadest class standing to challenge a particularly kind of spending. Taxpayer standing - generally disfavored - exists for, and only for, challenges to spending, if a violation of the establishment clause is alleged. Flast v. Cohen] This gets around the problem of the perpetual nonjusticiability of the clause. It's a limited exception BUT, it makes it clear that the right to spend isn't plenary; it's still limited by the bill of rights, and when it's a particular right at issue (the right to a nontheocratic Federal government), it will be even easier than usual.

It is theoretical, but a general scholarly consensus (not without detractors) believe that there is an "independant unconstutionality" argument lurking. That is, even where the Constitution gives Congress discretionary power, independant violation of Constitutional civil rights can still be challenged by a proper party. In these cases, someone should have standing.

For example, a bill that authorized uncoditional spending to promote state violation of a federal civil right. These are hard to imagine, but I'll try. How about a Federal program to promote local governments to sieze peoples' property without compensation? Or a Federal program that granted a billion dollars to seize legally-owned guns? Someone - anyone who was in turn victimized by these state governments - would at least possibly meet constitutional standing. Someone dispossessed of their property (e.g. their firearms) would have an injury in fact, although the U.S. could certainly argue, relying on Allen v. Wright that the injury is not traceable to them, but to the acts of local government, it being irrelevant that they created an incentive. The U.S. would argue that the injury is not redressable by relief against the Federal government as well - even without the funds, State government could continue to harass citizens. The private plaintiff would aruge that the incentive was a substantial cause, and enjoining that law would make it harder for the State government to injury them.

It is impossible to say how such a hypothetical would be resolved. When there is flagrant subversion of the constitution, a court is more likely to dispense with the standing issue, and the Supreme Court is usually less likely to go there on appeal. The spending may still be constitutional on the merits, depending on what standard applies.

I realize this doesn't squarely answer your question. It's just some collected thoughts on the subject. The only real answer to your question I can give you is "maybe." Non Curat Lex (talk) 01:32, 8 December 2008 (UTC)

I think that is about as good and thorough an answer as I could possibly expect and/or understand without legal training. Thanks for taking the time to type that up, its plenty of food for thought. 75.82.133.73 (talk) 06:25, 10 December 2008 (UTC)

"The only real answer to your question I can give you is 'maybe.'" Answered like a true lawyer. :p :D Foofighter20x (talk) 06:48, 10 December 2008 (UTC)

Sometimes I think that the great legal and governmental founders of the western world designed a system replete with "maybes," in order to assure that lawyers would always have something to do. Non Curat Lex (talk) 22:27, 10 December 2008 (UTC)

Moved back to GWC?

lol. What happened now? :) -- Foofighter20x (talk) 00:16, 30 September 2009 (UTC)

Just to further strengthen my stance from two years ago that it's called the Taxing and Spending Clause, here's a chapter from the left-wing American Constitution Society for Law and Policy:

http://www.acslaw.org/files/KF%20Chapters/ACS_KeepFaith_Chap%204.pdf

As one can see, halfway down the second page in the chapter, even the scholars on the left call it TASC and not GWC, which is a component part of the TASC. -- Foofighter20x (talk) 08:33, 15 November 2009 (UTC)

"Power of the purse, generally" section

I changed a single word in the "Power of the purse, generally" section which was strongly worded with the word "any" in the context of "... serves as a constitutional check and balance on the legislature itself, prohibiting any spending that does not have broad support. I hope everyone agrees that changing 'any' to 'some' is a better description for this sentence. It is widely accepted that riders, special interest spending and buying votes are a part of negotiations which are accepted however individual expenditures will lack "broad support" on there own merits. —Preceding dedes016 comment added by 72.243.144.121 (talk) 22:01, 8 April 2011 (UTC)

I see the edit has been returned to it's former wording to reflect that 'all' spending passed by congress has 'broad support'. My argument is the word "all" should read "most" or the words "prohibiting all" should read "preventing most" because of riders, special interest spending, buying votes and the lack of a line item veto spending occurs which does not have "broad support". The supreme court struck down the line item veto act of 1996 which limited this type of spending. If anyone else would like to discuss this please do but line items get passed thru congress which on there own merits would not 'generaly' pass so they cannot have "broad support". For congressional spending it is all or nothing. Please read this Article on wikipedia describing riders. Dedes016 (talk) 17:19, 15 April 2011 (UTC)

I added the word implicit. The point being made by that sentence is one of political theory, and not necessarily one of actual fact. -- Foofighter20x (talk) 22:36, 17 April 2011 (UTC)

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