The Education of Congressman Hoyer

Congress is moving closer to enacting a law requiring all Americans to purchase health insurance. House Majority Leader Steny Hoyer says that this is “like paying taxes.”


He’s right about that. But Hoyer made this statement as part of an effort to justify the health-care mandate on constitutional grounds. Here he indicates that he doesn’t understand the Constitution that he took an oath to support.

When asked what power the Constitution gives to Congress to enact this legislation, Hoyer claimed that it came from the Constitution’s “general welfare” clause.

Article One, section eight says that Congress can “lay and collect taxes… to pay the debts and provide for the common defense and general welfare of the United States.”

But what defines the “general welfare”?

As James Madison explained, the general welfare is defined by the list of enumerated powers in the seventeen clauses that follow. These include the power to borrow money, to establish post offices, to define and punish piracy, to raise and support armies.

The fundamental point was that the federal government did not possess a general grant of power, but was limited to enumerated or delegated powers. The rest of the general reservoir of governmental power (known as the “police power”) was left to the states. The Tenth Amendment reiterated the point.

The language of the Constitution was quite explicit about this–precise to the point of punctuation. A draft of the document at the Constitutional Convention contained a semicolon between the taxing phrase and the general welfare phrase. As an independent clause, the taxing power could have been used for any purpose under the sun. Instead, the sharp-eyed founders substituted a comma for the semicolon, thus tethering the taxing power to the general welfare clause and the enumerated powers.

It is notable that the enumerated powers all involve subjects that are of genuinely national significance–many concern foreign affairs, the territories, and the federal district. Hardly anyone would deny that the army and navy could be left to states or individuals. The enumerated powers are also notably specific. Why write that Congress has the power to “provide for the punishment of counterfeiting the securities and current coin of the United States” if Congress could punish all sorts of other crimes?

Of course, the list includes the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” But this simply meant that Congress enjoyed a choice of means by which it could achieve the foregoing ends.

It is true that, contra Madison, Alexander Hamilton regarded the general welfare clause as a grant of power beyond those enumerated. But even Hamilton agreed that the end had to be general. Congressman Hoyer says that “the end that we’re trying to effect is to make health care affordable.” Besides the fact that federal intervention has only made health care (like education) less affordable, accelerating costs far beyond that of inflation, this is hardly a “general” purpose (like national defense) that could not be accomplished by states, voluntary associations, and individuals.

Madison’s view of the general welfare clause predominated for the first century and a half of the republic. But Congressman Hoyer’s Constitution begins where Madison’s ended, with the New Deal. And this makes Hoyer’s claim that we need not worry about Congress overstepping its general welfare limits because “I’m sure the Supreme Court will find a limit” rather humorous.

The first case in which the Supreme Court interpreted the general welfare clause as going beyond the enumerated powers was United States v. Butler (1936), when it struck down the first Agricultural Adjustment Act. An act that taxed agricultural processors to pay subsidies to farmers could hardly be called “general.” But the following year, after President Roosevelt threatened to “pack” the Court, the justices accepted the Social Security Act, which taxes employers and employees to pay for old-age pensions and other social insurance.

Social Security, the mother of all entitlements, was born when the Supreme Court abandoned the proper understanding of the general welfare clause. And she now begets constitutionally illegitimate children like health-care reform.

Congressman Hoyer is either ignorant of or averts his eyes from this history. One must give credit to President Obama for this much–he recognizes that the Constitution stands in the way of modern liberalism. In a 2001 interview on Chicago public radio, Obama lamented that we have still not broken “free from the essential constraints that were placed by the Founding Fathers in the Constitution… that generally the Constitution is a charter of negative liberty.” But it is doubtful that former Professor Obama will help in the education of Congressman Hoyer.