Taxing and Spending Clause

One of the most often claimed defects 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, either by 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 limitation and proposed amendments to the Articles in an effort to supersede it. However, nothing ever came of those proposals until the Philadelphia Convention. == Powers granted ==

The power to tax is a concurrent power of the federal government and the individual states. The taxation power has been perceived over time to be very broad, but has also, on occasion, been curtailed by the courts. United States v. Butler stated that the clause also granted "a substantive power... to appropriate", not subject to the limitations imposed by the other enumerated powers of Congress. Power to tax This power is considered by many to be essential to the effective administration of government. As argued under the Articles, the lack of a power to tax renders government impotent. Typically, the power is used to raise revenues for the general support of government. But, Congress has employed the taxing power in uses other than solely for the raising of revenue, such as: • regulatory taxation – taxing to regulate commerce; • prohibitive taxation – taxing to discourage, suppress, or even exterminate commerce; • obligation taxation – encouraging participation in commerce via taxation on those not participating in interstate commerce; e.g. the Patient Protection and Affordable Care Act, "Chief Justice Roberts concluded in Part III–C that the individual mandate must be construed as imposing a tax on those who do not have health insurance"; • tariffs – taxing as a means of protectionism. In 1922, the 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, While recognizing that the federal government is one of limited and enumerated powers, the Supreme Court has held that Congress may incentivize state governments via appropriations of federal funds to adopt and enforce federal policy goals that otherwise would lay beyond the powers of the federal government directly to impose. In South Dakota v. Dole, the Court upheld a federal law withholding a portion of highway funds from states that did not raise their minimum legal drinking age to 21. == Limitations on taxing power ==

Several Constitutional provisions address the taxation and spending authority of Congress. These include both requirements for the apportionment of direct taxes and the uniformity of indirect taxes, the origination of revenue bills within the House of Representatives, 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. Additionally, Congress and the legislatures of the various states are prohibited from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax by the Twenty-fourth Amendment. Origination Clause The Constitution provides in the Origination Clause that all bills for raising revenue must originate in the House of Representatives. The idea underlying the clause is that Representatives, being the most numerous branch of Congress, and most closely associated with the people, know best the economic conditions of the people they represent, and how to generate revenues for the support of government in the least burdensome manner. Additionally, Representatives are regarded the most accountable to the people, and thus are least likely to exercise the taxing power abusively or injudiciously. General Welfare Clause Of all the limitations upon the power to tax and spend, the General Welfare Clause appears to have achieved notoriety as one of the most contentious. The dispute over the clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare". The two primary authors of The Federalist Papers set forth two separate, conflicting interpretations: • James Madison, in Federalist 41, advocated the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting 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. • Alexander Hamilton, in Federalist 34 and his 1791 Report on Manufactures, argued for a broad interpretation which viewed spending as an enumerated power Congress could 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. Although The Federalist was 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. This assertion 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 later described the distinction between the parties over this view as "almost the only landmark which now divides the federalists from the republicans". Joseph Story Associate Justice Joseph Story relied heavily upon The Federalist 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 rejected at the Philadelphia Convention. Ultimately, Story concluded that Thomas Jefferson's view of the clause as a limitation on the power to tax, given in Jefferson's opinion to Washington on the constitutionality of the national bank, was the correct reading. However, Story also concluded that Hamilton's view on spending, articulated in his 1791 Report on Manufactures, is the correct reading of the spending power. Prior to 1936, the United States Supreme Court had imposed a narrow interpretation of the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co., (1922) the Supreme Court interpreted the clause even more expansively, disavowing almost entirely any role for judicial review of Congressional spending policies, thereby conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to Congress's own discretion. In South Dakota v. Dole (1987) 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 point to Hamilton's limited participation in 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 just as 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 (1767), Dickinson wrote of what he understood taxing for the general welfare entailed: 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: 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 with a report from the Supreme Court of Argentina: That argument is contrasted with an argument that the Federal Constitution was a constitution for limited government that extended to issues about which individual states were "incompetent", while state constitutions were free to govern all the remaining issues. Uniformity Clause The final phrase of the Taxing and Spending Clause stipulates: 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 relevant to practicality and fairness: 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 (1983), the Court allowed a tax exemption which was quasi-geographical in nature. In the case, oil produced within a defined geographic region above the Arctic 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. 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: 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. At the same time, the national population was 281.5 million people. This gave California 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 California would be required to fund 12 percent of the total amount: $120 billion. 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 that all income taxes were indirect taxes—or more specifically, "within the category of an excise or duty". 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 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: 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: 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. 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. Under this principle, 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 vague, or where the beneficiary essentially is put into a position where acceptance of the conditions becomes obligated. Conditional spending and federalism In 1987, the holding in South Dakota v. Dole Power of the purse, generally Article I, Section 9, Clause 7 imposes accountability on Congressional spending: 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's power of the purse. This provision, when also combined with the bicameral nature of Congress and the quorum requirements of both the Senate and the House of Representatives, serves as a constitutional check and balance on the legislature itself, preventing most spending that in effect does not implicitly have broad support with respect to both representational popular will in the House of Representatives and inter-regional approval in the Senate. Congress attempted to limit appropriations logrolling via riders with the Line Item Veto Act of 1996. The U.S. Supreme Court later struck down the act on grounds that it violated the Presentment Clause. == References ==