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narrow construction

Taxing and Spending Clause

Article I, Section 8, Clause 1 of the United States Constitution, is known as the Taxing and Spending Clause. It is the clause that gives the federal government of the United States its power of taxation. Component parts of this clause are known as the General Welfare Clause and the Uniformity Clause.

Constitutional text

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Background

One of the most glaring deficiencies of the Articles of Confederation was its lack of a grant to the central government of the power to lay and collect taxes. Under the Articles, Congress was forced to rely on requisitions upon the governments of its member states. Without the power to independently raise its own revenues, the Articles left Congress vulnerable to the discretion of the several State governments—each State made its own decision as to whether it would pay the requisition or not. Some states were not giving Congress the funds for which it asked by either paying only in part, or by altogether ignoring the request from Congress. Without the revenue to enforce its laws and treaties, or pay its debts, and without an enforcement mechanism to compel the States to pay, the Confederation was practically rendered impotent and was in danger of falling apart.

The Congress recognized this problem and proposed amendments to the Articles in an effort to correct it. However, nothing ever came of those proposals until the Philadelphia Convention.

Powers granted

The powers to tax and spend are concurrent powers of the federal government and the individual states. These two powers have been received over time to be very broad, but have also, on occasion, been abridged by the courts. They are also currently held to be independent powers, not subject to the limitations imposed by the other enumerated powers of Congress.

Power to tax

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises
This power is essential to the survival of any government. As demonstrated by the government under the Articles, the lack of a power to tax renders the government to a stark level of ineffectuality. Typically, the power is used to raise revenues for the support of government. But, Congress has employed the taxing power in uses other than solely for the raising of revenue, such as:

  • taxing to regulate commerce;
  • taxing to discourage, suppress, or even exterminate commerce; and finally,
  • taxing as a means of protectionism.

In 1922, the United States Supreme Court struck down a 1919 tax on child labor in Bailey v. Drexel Furniture Co., commonly referred to as the "Child Labor Tax Case". The Court had previously held that Congress did not have the power to directly regulate labor, and found the law at issue to be an attempt to indirectly accomplish the same end. This ruling appeared to have been reinforced in United States v. Butler, in which the Supreme Court of the United States ruled that the processing taxes instituted under the 1933 Agricultural Adjustment Act were an unconstitutional attempt to regulate state activity in violation of the Tenth Amendment. However, despite its outcome, Butler affirmed that Congress does have a broad power to tax, and to expend revenues within its discretion. Butler was the last case in which the Court would find a constitutional limitation on the power of Congress to tax and spend.

Implicit power to spend

With the power to tax, implicitly and necessarily, must come the power to spend the revenues raised by such taxation in order to meet the objectives and goals of the government. To what extent this power ought to be utilized by the Congress has been the source of continued dispute and debate since the inception of the federal government, as will be explained below.

The Supreme Court has also found that, in addition to the power to use taxes to punish disfavored conduct, Congress can also use its power to spend to coerce favored conduct. In South Dakota v. Dole, the Court upheld a federal law which withheld highway funds to states that did not raise their legal drinking age to 21.

Limitations on taxing power

In various places within the Constitution, and in one amendment, there are to be found several clauses related to Congress' power to tax and spend. These include both requirements for the apportionment of direct taxes and the uniformity of indirect taxes, the disallowal of taxes on exports, the General Welfare requirement, the limitation on the release of funds from the treasury except as provided by law, and the apportionment exemption of the Sixteenth Amendment.

General Welfare Clause

to pay the Debts and provide for the common Defence and general Welfare of the United States;
Of all the limitations upon the power to tax and spend, the General Welfare clause appears to have achieved notoriety as the most contentious. The dispute over the clause arises from the disagreement over what exactly is meant by the phrase "general welfare."

The two primary authors of the Federalist Papers essays set forth two separate, conflicting theories:

  • the narrower view of James Madison that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax; and
  • the broader view of Alexander Hamilton that spending is an enumerated power that Congress may exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.

Though the Federalist Papers were not reliably distributed outside of New York, the essays eventually became the dominant reference for interpreting the meaning of the Constitution as they provided the reasoning and justification behind the Framers' intent in setting up the federal government.

While Hamilton's view prevailed during the administrations of Presidents Washington and Adams, historians commonly believe that his view of the General Welfare Clause was repudiated in the election of 1800, and helped establish the primacy of the Democratic-Republican party for the subsequent 24 years. This belief is based on the motivating factor which the Kentucky and Virginia Resolutions played upon the electorate; the Kentucky Resolutions, authored by Thomas Jefferson specifically criticized Hamilton's view. Further, Jefferson himself had later written the distinction between the parties over this view was "almost the only landmark which now divides the federalists from the republicans....

Associate Justice Joseph Story relied heavily upon the Federalist Papers as a source for his Commentaries on the Constitution of the United States. In that work, Story excoriated both the Madisonian view and a previous, strongly nationalistic view of Hamilton's which was put forward at the Philadelphia Convention. Ultimately, however, Story opined the weaker, spending view of Hamilton described above as the correct construction.

Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co., in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause.

This narrow view was later overturned in United States v. Butler. There, the Court agreed with Justice Story's construction, holding the power to tax and spend is an independent power; that is, the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare. The Court wrote:

[T]he [General Welfare] 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. … 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. … But the adoption of the broader construction leaves the power to spend subject to limitations. … [T]he powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare.
The tax imposed in Butler was nevertheless held unconstitutional as a violation of the Tenth Amendment reservation of power to the states.

Shortly after Bulter, in Helvering v. Davis, the Supreme Court interpreted the clause even more expansively, confering upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole.

To date, the Hamiltonian view of the General Welfare Clause predominates in case law. Historically, however, the Anti-Federalists were wary of such an interpretation of this power during the ratification debates in the 1780s. Due to the objections raised by the Anti-Federalists, Madison was prompted to author his contributions to the Federalist Papers, attempting to quell the Anti-Federalists' fears of any such abuse by the proposed national government and to counter Anti-Federalist arguments against the Constitution.

Proponents of the Madisonian view also squarely point to the extensive absence of Hamilton from the Constitutional Convention, particularly during the time frame in which this clause was crafted as further evidence of his lack of constructive authority.

An additional view of the General Welfare Clause that is not as well known, but as equally authoritative as the views of both Madison and Hamilton, can be found in the pre-Revolutionary writings of John Dickinson, who was also a delegate to the Philadelphia Convention. In his Letters from a Farmer in Pennsylvania, Dickson wrote of what he understood taxing for the general welfare entailed:

The parliament unquestionably possesses a legal authority to regulate the trade of Great Britain, and all her colonies. Such an authority is essential to the relation between a mother country and her colonies; and necessary for the common good of all. He who considers these provinces as states distinct from the British Empire, has very slender notions of justice, or of their interests. We are but parts of a whole; and therefore there must exist a power somewhere, to preside, and preserve the connection in due order. This power is lodged in the parliament; and we are as much dependent on Great Britain, as a perfectly free people can be on another.

I have looked over every statute relating to these colonies, from their first settlement to this time; and I find every one of them founded on this principle, till the Stamp Act administration. All before, are calculated to regulate trade, and preserve or promote a mutually beneficial intercourse between the several constituent parts of the empire; and though many of them imposed duties on trade, yet those duties were always imposed with design to restrain the commerce of one part, that was injurious to another, and thus to promote the general welfare. The raising of a revenue thereby was never intended. - (emphasis in the original)

The idea Dickinson conveyed above, explains University of Montana Law Professor Jeffrey T. Renz, is that taxing for the general welfare is but taxation as a means of regulating commerce. Renz expands upon this point:

If we excise "general welfare" from the Tax Clause, we are presented with the claim that Congress may not levy duties for purposes other than paying the debts and providing for the common defense. Indeed, omitting the general welfare phrase would eliminate nearly all duties for regulatory purposes. A strong argument could be made that while Congress might have the power to regulate foreign and interstate commerce, the omission of "general welfare" from the Tax Clause was intended to deny it the power to regulate commerce by means of duties.

Comparative view

The narrow construction of the General welfare clause is unusual when compared to similar clauses in most State constitutions, and many constitutions of other countries. Virtually every state constitution has a general welfare clause which is interpreted as granting the state an independent power to regulate for the general welfare. An international example is provided by a report from the Supreme Court of Argentina:

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, but recognized differences in the two constitutions.

Uniformity Clause

The final phrase of the Taxing and Spending Clause stipulates:
but all Duties, Imposts and Excises shall be uniform throughout the United States.
Here, the requirement is that taxes must be geographically uniform throughout the United States. This means taxes affected by this provision must function "with the same force and effect in every place where the subject of it is found. However, this clause does not require revenues raised by the tax from each state be equal.

Justice Story characterized this requirement in a light more relevent to practicality and fairness:

It was to cut off all undue preferences of one state over another in the regulation of subjects affecting their common interests. Unless duties, imposts, and excises were uniform, the grossest and most oppressive inequalities, vitally affecting the pursuits and employments of the people of different states, might exist.
In other words, it was another check placed on the legislature in order to keep a larger group of states from "ganging up" to levy taxes benefiting them at the expense of the remaining, smaller group of states.

A somewhat notable exception to this limitation has been upheld by the Supreme Court. In United States v. Ptasynski, the Court allowed a tax exemption which was quasi-geographical in nature. In the case, oil produced within a defined geographic region above the Artic Circle was exempted from a federal excise tax on oil production. The basis for the holding was that Congress had determined the Alaskan oil to be of its own class and exempted it on those grounds, even though the classification of the Alaskan oil was a function of where it was geographically produced.

To understand the nuance of the Court's holding, consider this explanation: Congress decides to implement a uniform tax on all oil production. The tax so implemented distinguishes between different grades of oil (e.g., Grade A vis-à-vis Grade B) and exempts one of the grades from taxation. Even though the exempted grade might possibly be defined by where it is geographically produced, the tax itself is still geographically uniform.

Apportionment of direct taxes

Language elsewhere in the Constitution also expressly limits the taxing power. Article I, Section 9 has more than one clause so addressed. Clause 4 states:

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

Generally, a direct tax is subject to the apportionment rule, meaning taxes must be imposed among the states in proportion to each state's population in respect to that state's share of the whole national population. For example: As of the 2000 Census, nearly 34 million people populated California (CA). At the same time, the national population was 281.5 million people. This gave CA a 12 percent share of the national population, roughly. Were Congress to impose a direct tax in order to raise $1 trillion before the next census, the taxpayers of CA would be required to fund 12 percent of the total amount: $120 billion dollars.

Apportionment and income taxes

Before 1895, direct taxes were understood to be limited to "capitation or poll taxes" (Hylton v. United States) and "taxes on lands and buildings, and general assessments, whether on the whole property of individuals or on their whole real or personal estate" (Springer v. United States). The decision in Springer went further in declaring all income taxes were indirect taxes—or more specifically, "within the category of an excise or duty." However, in 1895 income taxes derived from property such as interest, dividends, and rent (imposed under an 1894 Act) were treated as direct taxes by the Supreme Court in Pollock v. Farmers' Loan & Trust Co. and were ruled to be subject to the requirement of apportionment. As the income taxes imposed under the 1894 Act were not apportioned in such a manner, they were held unconstitutional. It was not the income tax per se, but the the lack of a provision for its apportionment as a direct tax which made the tax unconstitutional.

The resulting case law prohibiting unapportioned taxes on incomes derived from property was later eliminated by the ratification of the Sixteenth Amendment in 1913. The text of the amendment was clear in its aim:

The Congress shall have power to lay and collect taxes on income, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Shortly after, in 1916, the U.S. Supreme Court ruled in Brushaber v. Union Pacific Railroad that under the Sixteenth Amendment income taxes were constitutional even though unapportioned, just as the amendment had provided. In subsequent cases, the courts have interpreted the Sixteenth Amendment and the Brushaber decision as standing for the rule that the amendment allows income taxes on "wages, salaries, commissions, etc. without apportionment.

No taxes on exports

Article I, Section 9, Clause 5 provides a further limitation:

No Tax or Duty shall be laid on Articles exported from any State.

This provision was an important protection for the southern states secured during the Constitutional Convention. With the grant of absolute power over foreign commerce given to the federal government, the states whose economies relied chiefly on exports realized that any tax laid by the new central government upon a single item of export would apply very unevenly amongst all the states and favor states which did not export that good.

In 1996, the Supreme Court held this provision prohibits Congress to tax any goods in export transit, and further forbids taxes on any services related to such export transit.

Shortly after, the Supreme Court reaffirmed this provision in United States v. United States Shoe Corp. in 1998. As part of the Water Resources Development Act of 1986, a harbor maintenance tax was imposed at the ad valorem (percentile) rate of 0.125% the value of the cargo instead of at a rate dependent entirely upon the cost of the service provided by the port. The Court unanimously affirmed the ruling of the lower Federal Circuit Court that a "user fee" imposed in such a manner is, in fact, a tax on exports and unconstitutional.

However, Congress may tax goods not in transit even though they are intended for export so long as the tax is not imposed solely for the reason that the good will be exported. For example, a tax imposed on all medical supplies would be constitutional even though there is a likelihood a portion of those supplies will be exported.

Restrictions on spending

The constraints placed upon the Taxing and Spending Clause and the subsequent powers derived therefrom do not stop at the Taxing Power.

Disguised regulations

While such holdings are rare and unlikely under contemporary jurisprudence, the Supreme Court has shown in the past its possible willingness to intervene on Congressional spending where its effects amount to a disguised regulation on private activity. The case illustrative of this is United States v. Butler.

In this case, the Court held that Congress had imposed a coercive federal regulatory scheme on farm production under the Agricultural Adjustment Act of 1933 (AAA). By entering into contracts with farmers who reduced their output of selected crops, Congress had placed non-participatory farmers at a distinct disadvantage to farmers who cooperated. As such, the program was not truly voluntary as it left the farmers no real choice; the options for the farmers were either cooperation or financial ruin. Under those circumstances, the regulatory scheme essentially required submission of farmers to a regulatory scheme Congress had no power to impose on its own.

The holding of the Butler case stemmed from the legal theory of that era, which held that regulation of production fell outside of Congress' commerce power. While the Court today is much more likely to defer to Congressional spending via the Commerce Clause, there are still circumstances where such spending may not be justifiable or validated by that power.

Unconstitutional conditions

While clearing the hurdle of regulatory spending may be easier today than in the past, another significant hurdle exists in the unconstitutional conditions doctrine. Here, the government may not use its spending power to purchase the constitutional rights of the spending's beneficiaries. Furthermore, entitlements may not be denied on grounds that violate a constitutionally protected right.

The Court has typically held this spending limitation as only applying to First Amendment rights where the choice imposed is unreasonable or vauge, or where the beneficiary essentially is put into a position where acceptance of the conditions becomes obligated.

Conditional spending and the states

In 1988, the holding in South Dakota v. Dole reaffirmed the authority of Congress to attach conditional strings to the receipt of its funds. However, the Court devised more scrutinous criteria for determining the constitionality of the conditions imposed in addition to the requirement that spending be for the general welfare:

  • First, there can be no surprises; that is, the conditions for receipt must be stated clearly and the beneficiary must be aware of those conditions and their consequences.
  • Second, the conditions imposed must be related to the spending in question.
  • Last, the incentive must not be so significant as to turn cooperation into coercion.

At dispute in Dole was a condition on the receipt of federal highway funds: any state in which persons less than 21 years of age could lawfully possess and consume alcohol would consequentually lose five percent of the federal highway funds allocated by Congress. The Court found the second and last conditions met since the requirement for the funds was germane to highway safety. Additionally, the loss of only five percent of the amount was not found so substantial as to be coercive in the eyes of the Court (as opposed to losing half or all of the funds might be).

Power of the purse, generally

Article I, Section 9, Clause 7 imposes accountability on Congressional spending:
No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

The first half of this clause indicates that Congress must have appropriated by law the funds to be spent before the funds can be released from the Treasury. It serves as a powerful check of the legislature on the executive branch, as it further secures Congress' power of the purse. This provision, when combined with the quorum requirement on both the Senate and the House of Representatives, also serves as a constitutional check and balance on the legislature itself, prohibiting the legislature from any spending that does not have broad support.

References

Notes

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