Scope of the Power

The grant of power to “provide . . . for the general welfare” raises a two-fold question: how may Congress provide for “the general welfare” and what is “the general welfare” that it is authorized to promote? The first half of this question was answered by Thomas Jefferson in his opinion on the Bank as follows: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”606 The clause, in short, is not an independent grant of power, but a qualification of the taxing power. Although a broader view has been occasionally asserted,607 Congress has not acted upon it and the Court has had no occasion to adjudicate the point.

With respect to the meaning of “the general welfare” the pages of The Federalist itself disclose a sharp divergence of views between its two principal authors. Hamilton adopted the literal, broad meaning of the clause;608 Madison contended that the powers of taxation and appropriation of the proposed government should be regarded as merely instrumental to its remaining powers; in other words, as little more than a power of self-support.609 From early times, Congress has acted upon Hamilton’s interpretation. Appropriations for subsidies610 and for an ever-increasing variety of “internal improvements”611 constructed by the Federal Government, had their beginnings in the administrations of Washington and Jefferson.612 Since 1914, federal grants-in-aid, which are sums of money apportioned among the states for particular uses, often conditioned upon the duplication of the sums by the recipient state, and upon observance of stipulated restrictions as to their use, have become commonplace.

The scope of the national spending power came before the Supreme Court at least five times prior to 1936, but the Court disposed of four of the suits without construing the “general welfare” clause. In the Pacific Railway Cases613 and Smith v. Kansas City Title & Trust Co.,614 it affirmed the power of Congress to construct internal improvements, and to charter and purchase the capital stock of federal land banks, by reference to its powers over commerce, post roads, and fiscal operations, and to its war powers. Decisions on the merits were withheld in two other cases, Massachusetts v. Mellon and Frothingham v. Mellon,615 on the ground that neither a state nor an individual citizen is entitled to a remedy in the courts against an alleged unconstitutional appropriation of national funds. In United States v. Gettysburg Electric Ry.,616 however, the Court invoked “the great power of taxation to be exercised for the common defence and general welfare”617 to sustain the right of the Federal Government to acquire land within a state for use as a national park.

Finally, in United States v. Butler,618 the Court gave its unqualified endorsement to Hamilton’s views on the taxing power. Justice Roberts wrote for the Court: “Since the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”619

By and large, it is for Congress to determine what constitutes the “general welfare.” The Court accords great deference to Congress’s decision that a spending program advances the general welfare,620 and has even questioned whether the restriction is judicially enforceable.621 Dispute, such as it is, turns on the conditioning of funds.

As with its other powers, Congress may enact legislation “necessary and proper” to effectuate its purposes in taxing and spending. In upholding a law making it a crime to bribe state and local officials who administer programs that receive federal funds, the Court declared that Congress has authority “to see to it that taxpayer dollars . . . are in fact spent for the general welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt public officers are derelict about demanding value for dollars.”622 Congress’s failure to require proof of a direct connection between the bribery and the federal funds was permissible, the Court concluded, because “corruption does not have to be that limited to affect the federal interest. Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value.”623

Social Security Act Cases.

Although the Court in Butler held that the spending power is not limited by the specific grants of power contained in Article I, § 8, the Court found, nevertheless, that the spending power was qualified by the Tenth Amendment, and on this ground ruled that Congress could not use moneys raised by taxation to “purchase compliance” with regulations “of matters of state concern with respect to which Congress has no authority to interfere.”624 Within little more than a year this decision was narrowed by Steward Machine Co. v. Davis,625 which sustained the tax imposed on employers to provide unemployment benefits, and the credit allowed for similar taxes paid to a state. To the argument that the tax and credit in combination were “weapons of coercion, destroying or impairing the autonomy of the states,” the Court replied that relief of unemployment was a legitimate object of federal expenditure under the “general welfare” clause, that the Social Security Act represented a legitimate attempt to solve the problem by the cooperation of state and Federal Governments, and that the credit allowed for state taxes bore a reasonable relation “to the fiscal need subserved by the tax in its normal operation,”626 because state unemployment compensation payments would relieve the burden for direct relief borne by the national treasury. The Court reserved judgment as to the validity of a tax “if it is laid upon the condition that a state may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power.”627

Conditional Grants-in-Aid.

It was not until 1947 that the right of Congress to impose conditions upon grants-in-aid over the objection of a state was squarely presented.628 The Court upheld Congress’s power to do so in Oklahoma v. Civil Service Commission.629 The state objected to the enforcement of a provision of the Hatch Act that reduced its allotment of federal highway funds because of its failure to remove from office a member of the State Highway Commission found to have taken an active part in party politics while in office. The Court denied relief on the ground that, “[w]hile the United States is not concerned with, and has no power to regulate local political activities as such of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed. . . . The end sought by Congress through the Hatch Act is better public service by requiring those who administer funds for national needs to abstain from active political partisanship. So even though the action taken by Congress does have effect upon certain activities within the state, it has never been thought that such effect made the federal act invalid.”630

The general principle is firmly established. “Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy.”631

The Court has set forth several standards purporting to channel Congress’s discretion in attaching grant conditions.632 To date only one statute, discussed below, has been struck down as violating these standards, although several statutes have been interpreted so as to conform to the guiding principles. First, the conditions, like the spending itself, must advance the general welfare, but the determination of what constitutes the general welfare rests largely if not wholly with Congress.633 Second, because a grant is “much in the nature of a contract” offer that the states may accept or reject,634 Congress must set out the conditions unambiguously, so that the states may make an informed decision.635 Third, the Court continues to state that the conditions must be related to the federal interest for which the funds are expended,636 but it has never found a spending condition deficient under this part of the test.637 Fourth, the power to condition funds may not be used to induce the states to engage in activities that would themselves be unconstitutional.638 Fifth, the Court has suggested that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which “pressure turns into compulsion.”639 Certain federalism restraints on other federal powers seem not to be relevant to spending conditions.640

In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA),641 which established a comprehensive health care system for the United States. As part of this new system, the Act expanded which persons were eligible for Medicaid, which is financed jointly by the federal and state governments. Failure of a state to implement such expansion could, in theory, have resulted in the withholding of all Medicaid reimbursements, including payments for persons previously covered by the Medicaid program. In National Federation of Independent Business (NFIB) v. Sebelius,642 seven Justices (in two separate opinions) held that the requirement that states either comply with the requirements of the Medicaid expansion under the ACA or lose all Medicaid funds violated the Tenth Amendment.643 The Court held, however, that withholding of just the funds associated with that expansion raised no significant constitutional concerns, essentially making the Medicaid expansion voluntary.

Chief Justice Roberts’ controlling opinion644 in NFIB held that the ACA Medicaid expansion created a “new” and “independent” program.645 As Congress’s power to direct state activities under the Spending Clause is in the nature of a contract, Justice Robert’s opinion suggests that the only changes that could be made to Medicaid would be those that could be reasonably anticipated by the states as they entered the original program, when only four categories of persons in financial need were covered: the disabled, the blind, the elderly, and needy families with dependent children. The Medicaid expansion arguably changed the nature of the program by requiring recipient states, as part of a universal health care system, to meet the health care needs of the entire nonelderly population with income below 133% of the poverty level.646 Thus, the Medicaid expansion “accomplishe[d] a shift in kind, not merely degree.”647

Once Justice Roberts established that the Medicaid expansion was a “new” and “independent” program, he then turned to whether withdrawal of existing Medicaid funds for failure to implement the expansion was coercive. Justice Roberts noted that the threatened loss of Medicaid funds was “over 10 percent of most State’s total revenue,” which he characterized as a form of “economic dragooning” which put a “gun to the head” of the states.648 Justice Roberts contrasted this amount with the amount of federal transportation funds threatened to be withheld from South Dakota in Dole, which he characterized as less than half of one percent of South Dakota’s budget. How courts are to consider grant withdrawals between 10 percent and one-half of 1 percent, however, is not addressed by the Roberts’ opinion, and Justice Roberts declined to speculate where such a line would be drawn.

If a state accepts federal funds on conditions and then fails to follow the requirements, the usual remedy is federal administrative action to terminate the funding and to recoup funds the state has already received.649 Although the Court has allowed beneficiaries of conditional grant programs to sue to compel states to comply with the federal conditions,650 more recently the Court has required that any such susceptibility to suit be clearly spelled out so that states will be informed of potential consequences of accepting aid. Finally, it should be noted that Congress has enacted a range of laws forbidding discrimination in federal assistance programs,651 and some of these laws are enforceable against the states.652

Earmarked Funds.

The appropriation of the proceeds of a tax to a specific use does not affect the validity of the exaction, if the general welfare is advanced and no other constitutional provision is violated. Thus a processing tax on coconut oil was sustained despite the fact that the tax collected upon oil of Philippine production was segregated and paid into the Philippine Treasury.653 In Helvering v. Davis,654 the excise tax on employers—the proceeds of which were not earmarked in any way, although intended to provide funds for payments to retired workers—was upheld under the “general welfare” clause, the Tenth Amendment’s being found inapplicable.

Debts of the United States.

The power to pay the debts of the United States is broad enough to include claims of citizens arising on obligations of right and justice.655 The Court sustained an act of Congress which set apart for the use of the Philippine Islands, the revenue from a processing tax on coconut oil of Philippine production, as being in pursuance of a moral obligation to protect and promote the welfare of the people of the Islands.656 Curiously enough, this power was first invoked to assist the United States to collect a debt due to it. In United States v. Fisher,657 the Supreme Court sustained a statute that gave the Federal Government priority in the distribution of the estates of its insolvent debtors. The debtor in that case was the endorser of a foreign bill of exchange that apparently had been purchased by the United States. Invoking the Necessary and Proper Clause, Chief Justice Marshall deduced the power to collect a debt from the power to pay its obligations by the following reasoning: “The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe.”658

Footnotes

606
3 WRITINGS OF THOMAS JEFFERSON 147–149 (Library Edition, 1904). [Back to text]
607
See W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES (1953). [Back to text]
608
THE FEDERALIST, Nos. 30 and 34 (J. Cooke ed. 1961) 187–193, 209–215. [Back to text]
609
Id. at No. 41, 268–78. [Back to text]
610
1 Stat. 229 (1792). [Back to text]
611
2 Stat. 357 (1806). [Back to text]
612
In an advisory opinion, which it rendered for President Monroe at his request on the power of Congress to appropriate funds for public improvements, the Court answered that such appropriations might be properly made under the war and postal powers. See Albertsworth, Advisory Functions in the Supreme Court, 23 GEO. L. J. 643, 644–647 (1935). Monroe himself ultimately adopted the broadest view of the spending power, from which, however, he carefully excluded any element of regulatory or police power. See his Views of the President of the United States on the Subject of Internal Improvements, of May 4, 1822, 2 MESSAGES AND PAPERS OF THE PRESIDENTS 713–752 (Richardson ed., 1906). [Back to text]
613
California v. Pacific R.R., 127 U.S. 1 (188). [Back to text]
614
255 U.S. 180 (1921). [Back to text]
615
262 U.S. 447 (1923). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938). These cases were limited by Flast v. Cohen, 392 U.S. 83 (1968). [Back to text]
616
160 U.S. 668 (1896). [Back to text]
617
160 U.S. at 681. [Back to text]
618
297 U.S. 1 (1936). See also Cleveland v. United States, 323 U.S. 329 (1945). [Back to text]
619
United States v. Butler, 297 U.S. 1, 65–66 (1936). So settled had the issue become that 1970s attacks on federal grants-in-aid omitted any challenge on the broad level and relied on specific prohibitions, i.e., the religion clauses of the First Amendment. Flast v. Cohen, 392 U.S. 83 (1968); Tilton v. Richardson, 403 U.S. 672 (1971). [Back to text]
620
Id. at 207 (citing Helvering v. Davis, 301 U.S. 619, 640, 645 (1937)). [Back to text]
621
Buckley v. Valeo, 424 U.S. 1, 90–91 (1976); South Dakota v. Dole, 483 U.S. 203, 207 n.2 (1987). [Back to text]
622
Sabri v. United States, 541 U.S. 600, 605 (2004). [Back to text]
623
541 U.S. at 606. [Back to text]
624
United States v. Butler, 297 U.S. 1, 70 (1936). Justice Stone, speaking for himself and two other Justices, dissented on the ground that Congress was entitled when spending the national revenues for the general welfare to see to it that the country got its money’s worth, and that the challenged provisions served that end. United States v. Butler, 297 U.S. 1, 84–86 (1936). [Back to text]
625
301 U.S. 548 (1937). [Back to text]
626
301 U.S. at 586, 591. [Back to text]
627
301 U.S. at 590. See also Buckley v. Valeo, 424 U.S. 1, 90–92 (1976); Fullilove v. Klutznick, 448 U.S. 448, 473–475 (1980); Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981). [Back to text]
628
In Steward Machine Company v. Davis, it was a taxpayer who complained of the invasion of state sovereignty, and the Court put great emphasis on the fact that the state was a willing partner in the plan of cooperation embodied in the Social Security Act. 301 U.S. 548, 589, 590 (1937). [Back to text]
629
330 U.S. 127 (1947). [Back to text]
630
330 U.S. 127, 143 (1947). This is not to say that Congress may police the effectiveness of its spending only by means of attaching conditions to grants; Congress may also rely on criminal sanctions to penalize graft and corruption that may impede its purposes in spending programs. Sabri v. United States, 541 U.S. 600 (2004). [Back to text]
631
Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (Chief Justice Burger’s opinion for the Court cited five cases to document the assertion: California Bankers Ass’n v. Shultz, 416 U.S. 21 (1974); Lau v. Nichols, 414 U.S. 563 (1974); Oklahoma v. Civil Service Comm’n, 330 U.S. 127 (1947); Helvering v. Davis, 301 U.S. 619 (1937); and Steward Machine Co. v. Davis, 301 U.S. 548 (1937). [Back to text]
632
See South Dakota v. Dole, 483 U.S. 203, 207–12 (1987). [Back to text]
633
483 U.S. at 207 (1987). See discussion under Scope of the Power, supra. [Back to text]
634
Barnes v. Gorman, 536 U.S. 181, 186 (2002) (holding that neither the Americans With Disabilities Act of 1990 nor section 504 of the Rehabilitation Act of 1973 subjected states to punitive damages in private actions). [Back to text]
635
South Dakota v. Dole, 483 U.S. at 207. The requirement appeared in Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). See also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985) (Rehabilitation Act does not clearly signal states that participation in programs funded by Act constitutes waiver of immunity from suit in federal court); Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (no private right of action was created by the Family Educational Rights and Privacy Act); Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) (because Individuals with Disabilities Education Act, which was enacted pursuant to the Spending Clause, does not furnish clear notice to states that prevailing parents may recover fees for services rendered by experts in IDEA actions, it does not authorize recovery of such fees). [Back to text]
636
South Dakota v. Dole, 483 U.S. at 207–08. See Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295 (1958). [Back to text]
637
The relationship in South Dakota v. Dole, 483 U.S. at 208–09, in which Congress conditioned access to certain highway funds on establishing a 21-years-of-age drinking qualification was that the purpose of both funds and condition was safe interstate travel. The federal interest in Oklahoma v. Civil Service Comm’n, 330 U.S. 127, 143 (1947), as we have noted, was assuring proper administration of federal highway funds. [Back to text]
638
South Dakota v. Dole, 483 U.S. at 210–11. [Back to text]
639
Steward Machine Co. v. Davis, 301 U.S. 548, 589–90 (1937); South Dakota v. Dole, 483 U.S. 203, 211–12. See North Carolina ex rel. Morrow v. Califano, 445 F. Supp. 532 (E.D.N.C. 1977) (three-judge court), aff’d 435 U.S. 962 (1978). [Back to text]
640
South Dakota v. Dole, 483 U.S. at 210 (referring to the Tenth Amendment: “the ‘independent constitutional bar’ limitation on the spending power is not . . . a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly”). [Back to text]
641
Pub. L. 111–148, as amended. [Back to text]
642
567 U.S. ___, No. 11–393, slip op. (2012). [Back to text]
643
Chief Justice Robert’s opinion was joined by Justices Breyer and Kagan on this point, while Justices Scalia, Kennedy, Thomas and Alito made a similar point in a joint dissenting opinion. The authoring Justices of the two opinions, however, did not join in either the reasoning or judgment of the other opinion. [Back to text]
644
“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted). Justice Roberts opinion is arguably narrower than the dissent, because, as discussed below, his opinion found a constitutional violation based on the presence of both a “new” “independent” program and a coercive loss of funds, while the dissenting opinion would have found the coercive loss of funds sufficient. NFIB, 567 U.S. ___, slip op. at 38–42 (Justices Scalia, Kennedy, Thomas and Alito dissenting). [Back to text]
645
567 U.S. ___, slip op. at 50, 53–54. It might be argued that the Roberts’ opinion, with its emphasis on “new” and “independent” programs, is implicitly addressing the “relatedness” inquiry of South Dakota v. Dole. Justice Roberts’ opinion, however, does not explicitly discuss the issue, and an argument can be made that there is a significant difference between the two inquiries. As noted, the “relatedness inquiry” in Dole was identified as a limitation on the Spending Clause, while the NFIB discussion of “new” and “independent programs” emphasized the concerns of the Tenth Amendment. Second, under Dole, the “relatedness” and “coercion” inquiries appear to be disjunctive, in that failure to comply with either of these factors would mean that the statute was unconstitutional. Under NFIB, however, the “new” and “independent” program inquiry and the “coercion” inquiry appear to be conjunctive, so that a grant condition must apparently fail both tests to be found unconstitutional. [Back to text]
646
Justice Roberts also noted that Congress created a separate funding provision to cover the costs of providing services to any person made newly eligible by the expansion, and mandated that newly eligible persons would receive a level of coverage that is less comprehensive than the traditional Medicaid benefit package. [Back to text]
647
567 U.S. ___, slip op. at 53. [Back to text]
648
567 U.S. ___, slip op. at 10, 51–52. [Back to text]
649
Bell v. New Jersey, 461 U.S. 773 (1983); Bennett v. New Jersey, 470 U.S. 632 (1985); Bennett v. Kentucky Dep’t of Education, 470 U.S. 656 (1985). [Back to text]
650
E.g., King v. Smith, 392 U.S. 309 (1968); Rosado v. Wyman, 397 U.S. 397 (1970); Lau v. Nichols, 414 U.S. 563 (1974); Miller v. Youakim, 440 U.S. 125 (1979). Suits may be brought under 42 U.S.C. § 1983, see Maine v. Thiboutot, 448 U.S. 1 (1980), although in some instances the statutory conferral of rights may be too imprecise or vague for judicial enforcement. Compare Suter v. Artist M., 503 U.S. 347 (1992), with Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418 (1987). [Back to text]
651
E.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681; Title V of the Rehabilitation Act of 1973, 29 U.S.C. § 794. [Back to text]
652
Here the principal constraint is the Eleventh Amendment. See, e.g., Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (Americans with Disabilities Act of 1990 exceeds congressional power to enforce the Fourteenth Amendment, and violates the Eleventh Amendment, by subjecting states to suits brought by state employees in federal courts to collect money damages). [Back to text]
653
Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). [Back to text]
654
301 U.S. 619 (1937). [Back to text]
655
United States v. Realty Co., 163 U.S. 427 (1896); Pope v. United States, 323 U.S. 1, 9 (1944). [Back to text]
656
Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). [Back to text]
657
6 U.S. (2 Cr.) 358 (1805). [Back to text]
658
6 U.S. at 396. [Back to text]