Heard the argument that since much of what the federal government does these days - Freddie Mac, Social Security, Medicare, you name it - is not within explicitly listed Enumerated Powers in the Constitution, all these programs, as long as they are federal, are unconstitutional. Any truth to it?

-- EDIT --

In the comments there arose a question on the subject of what it means for something to be unconstitutional. Some argue that something is not unconstitutional as long as the courts haven't ruled it is.

Assuming so, in a hypothetical case where someone challenged the aforementioned social programs on the grounds they weren't explicitly given in the Enumerated Powers, what could the courts point to in the Constitution to defend them?

Is it the general welfare clause as mentioned by RWW in the first answer? Could it be something other than the general welfare clause? Are there any specific cases?


Yes and no. It really depends on which view of the Enumerated Powers you subscribe to, as there have been differences of opinion on them since their inception. James Madison subscribed to a very narrow view of what the "General Welfare" meant, while Alexander Hamilton's views were more generous. The first Enumerated Powers listed in Article I, Section 8 of the United States Constitution state:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States;

There is a lot the federal government does so I can't go over everything "the federal government does these days", but as for the specific programs you mentioned, the government can levy taxes such as Social Security (especially when combined with the 16th Amendment) and under Supreme Court precendent can reapportion those funds raised for what it thinks is the "General Welfare" of the country. However, there have been a number of cases where the Supreme Court has provided different interpretations on what the clause allows. So to answer your question, no, generally the programs can be considered constitutional, although there have been court decisions based on specific details as well as competing statements by Founding Fathers as to what the General Welfare means. So, yes, it's possible they could be considered unconstitutional by experts and not just angry Facebook posters.

EDIT: Based on some of the questions that have arisen from my answer as well as the original question, I'm adding this link from Wikipedia that gives an excellent explanation of the specific part of the Enumerated Powers that we are talking about, as well as a great read on the history of its interpretation.

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    It should be noted that an additional source of expanded government is a wider interpretation of the interstate commerce clause and the budget (i.e. an adjustment if the state doesn't have certain laws). – pboss3010 Nov 28 '18 at 18:24
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    Could you name a specific Supreme Court case where the court defended a federal program of the sorts mentioned in the question (a social program I guess) by means of the general welfare clause? – user75619 Nov 28 '18 at 19:02
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    @user75619 you may want to read en.wikipedia.org/wiki/United_States_v._Butler "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. … 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." – David Rice Nov 28 '18 at 19:11
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    @user75619 Can someone challenge it? Sure, anybody can try to sue the government. The question is - would the courts overturn it, and is there precedent that would lead them to that. Generally, the Supreme Court has taken an expansive view of "general welfare" - likely considering it to be more of a "political question" than a court question. – David Rice Nov 28 '18 at 20:55
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    @user75619 I don't see a problem with Congress being able to tax and spend for the General Welfare, and they get to decide what the General Welfare is. It isn't everyone's interpretation, but it's a valid one, and the Supreme Court seems to use it. The General Welfare clause doesn't contain restrictions on itself, and the enumerated powers are generally agreed to be the only ones Congress can pass laws about that have effects other than taxing and spending. Indeed, it's hard to justify the Air Force Constitutionally without interpreting the Common Defense widely. – David Thornley Nov 28 '18 at 23:45

The argument you heard is based on an unwarranted assumption:

...since much of what the federal government does these days - Freddie Mac, Social Security, Medicare, you name it - is not within explicitly listed Enumerated Powers in the Constitution...

For each program, it is necessary to determine whether the program does fall within the explicitly enumerated powers. Many federal programs, for example, have been found to fall within the explicitly enumerated power to regulate interstate commerce, which is a very broad power indeed. Another broad power is the power to use taxes "to ... provide for the general welfare of the United States."

That any given program was not explicitly laid out in the constitution is no basis to conclude that the program does not fall within the enumerated powers of congress.

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    The supreme court ruled that interstate commerce includes a farmer growing wheat to feed animals on his own farm (Wickard v. Filburn). If you're looking for examples of just how "not explicitly laid out in the constitution" the courts are willing to back up the federal government. – lazarusL Nov 29 '18 at 17:32
  • @lazarusL yes, I was thinking of that but didn't have time to look up the name of the case. Thanks for mentioning it. A better response to the question, though, might be a function of the federal government that is similarly not explicit in the constitution, but uncontroversially within the scope of the interstate commerce clause. Perhaps the regulation of commercial driver's lecenses is such an example. – phoog Nov 29 '18 at 20:48
  • I've down voted this answer for a poor transcription on how the interstate commerce clause has been evolved since ratification. – Drunk Cynic Dec 30 '18 at 20:39
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    Solid answer. These two powers are indeed the source of authority for many functions that conservative legal scholars question as constitutional. – ohwilleke Dec 30 '18 at 21:42
  • @DrunkCynic could you elaborate on that? What is "poor" or lacking? Thanks. – phoog Dec 30 '18 at 22:12

Something is not unconstitutional as long as the courts haven't ruled it unconstitutional.

I disagree with this wholeheartedly (on the face of it). If this were the case, nothing would ever be ruled unconstitutional because it was constitutional when it happened and therefore the courts couldn't change that.

Instead we should say that "we don't know for sure if questionable things are unconstitutional until courts rule on them." I would also like to add "...and even then, courts may make a different decision later if we're not lucky."

  • I was paraphrasing Geobits's first comment to my question. Or you mean to say I misrepresented what he said? – user75619 Nov 28 '18 at 20:25
  • @user75619, no, I'm trying to write this answer to address whatever idea I quoted (correctly or incorrectly) in the yellow box. If that's an idea that you don't hold, then this answer isn't against your ideas. – elliot svensson Nov 28 '18 at 20:32
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    @user75619 I didn't exactly say that "it was constitutional when it happened" though. Elliot's second paragraph is more in line with what I meant, whether it came out that way or not. – Geobits Nov 28 '18 at 20:41

The vast majority of what the Federal government does is unconstitutional. The point of the constitution was twofold:

  1. Preserve the citizen's individual rights
  2. Chain down the Federal government and keep it from becoming the behemoth that it's become.

It's ironic that the first nation to be founded on the idea of a small limited government somehow grew into the largest bureaucracy the globe has EVER seen. Through the creation of Executive, alphabet agencies the creation of law has largely been usurped from Congress. The Constitution places all law making power in the hands of Congress, with limited jurisdiction in certain areas. All other areas of jurisdiction is to fall to the states. (See the 10th Amendment)

By creating executive agencies like the BLM, or BATF that can just write regulations(which have the same force of law behind them as actual 'Laws' have) with little or no oversight from Congress this effectively does an end run around the Constitution in 2 ways:

  1. It allows these agencies to cross over into the realm of jurisdictions preserved for the states under the 10A
  2. It circumvents Congress.

Many other areas of the Constitution have been usurped as well, but I can't possibly list them all, but look at Article 1 section 8: I am referring to the part that basically says that Congress can only fund a standing army for a period of 2 years during times of war. We have been taxed to maintain a standing army for well over 100 years now. NOBODY in D.C. even discusses this or the 10th Amendment, because they all know, what I am talking about.

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” - James Madison

Another large issue is the 17th Amendment and the fact that it was never properly ratified and how it ties into the Revolutionary War and Congress' power to coin money. In essence our entire banking system is unconstitutional.

"The refusal of King George to allow the colonies to operate an honest money system, which freed the ordinary man from clutches of the money manipulators was probably the prime cause of the revolution" - Benjamin Franklin

I could go on and on about all the usurpations of the Constitution, but will throw only one last thing in: Rights as protected under the Bill of Rights are supposed to be unalienable. When you have to obtain a permission slip from government to exercise a right, that right has been reduced to a privilege.

For example: the requirement by local authorities in many areas to obtain a permit to peaceably assemble/protest. In this case as well as many other examples I could give, your right has been usurped. In this case the 1st Amendment just got reduced to a privilege. We could go right down the list of the Bill of Rights and find examples of how they have been reduced to privileges.

To even argue that the Federal government hasn't completely busted the chains of the Constitution, would be a fool's errand.

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    Currently, this answer is hard to follow. – Alexei Dec 30 '18 at 9:31
  • There is a lot of misbuilt ramble in this answer, wondering around the crumbs of a decent answer. – Drunk Cynic Dec 30 '18 at 18:44

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