Is much of what the US federal government does unconstitutional?
As to the title question, yes.
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?
Some are, some aren't. Whether a program, or any part of it, is constitutional depends on what is neccessary and proper for carrying into execution a foregoing power (Article I, Section 8, Clause 18).
Consider the licensing of private, non-commercial aircraft pilots operating within one state. There is no explicit conection with any enumerated power; yet all pilots must be licensed and follow FAA regulations because the uncontrolled operation of the aircraft could interfere with the conduct of interstate commerce (the commerce clause) and military flights and overflights of military bases and ports (the Army and Navy clauses). Also, local building codes may be regulated to limit building height, in the vicinity of airports, and require flashing lights atop taller buildings.
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.
Any law may be unconsititutional the moment it is signed in to law. It is just that it may take a small fortune to challenge the law and see it through all the appeals. Often, the cost cannot justify the expense of doing so.
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?
It is not the job of the courts to defend governmental programs, that's for the goevernment's lawyers. In UNITED STATES v. BUTLER et al. (297 U.S. 1), Justice (Owen Josephus) Roberts, for the Court, wrote:
There should be no misunderstanding as to the function of this court in such a case. It is sometimes said that the court assumes a power to overrule or control the action of the people's representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.
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?
The general welfare clause is a fiction that resulted from a mistake by Alexander Hamilton and was compounded by Justice Story in his Commentaries on the Constitution. As to the other questions, for social programs, mostly it's abuse of the so-called general welfare clause. I am not aware of any specific challenges to general welfare. For Social Security CHAS. C. STEWARD MACH. CO. V. DAVIS, 301 U.S. 548 (1937), the excise tax was challenged. In The Constitution of the United States of America: Analysis and Interpretation—, page 154, "The scope of the national spending power was brought 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. ... Finally, in United States v. Butler, the Court gave its unqualified endorsement to Hamilton’s views on the taxing power."
On May 5, 2012, I posted the following to a usenet thread titled OT: I'm really not anti-American, just fed up with stupidity.... Editing was done to correct spelling, to remove opinion, and to verify and update links. The format is, generally, to quote a source before identifying a point made.
The US Constitution.
Article I, Section 8, Clause 18: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Article I, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
Article II, Section 1: "The executive Power shall be vested in a President of the United States of America."
Article III, Section 1: "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
Point 1: The Constitution classifies "the foregoing powers" and certain unidentified powers as GOVERNMENTAL powers, and the legislative, executive, and judicial powers as DEPARTMENTAL powers.
Point 2: By definition, a power to make law is a LEGISLATIVE power and applies to Article I, Section 8, Clause 18 and a few other clauses in the Constitution; but not to the foregoing powers.
This is used for reference to the Federalist Papers. (References are abbreviated herein.)
In Fed41 through Fed44, Madison describes his view of the powers.
"That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects:
1. Security against foreign danger;
2. Regulation of the intercourse with foreign nations;
3. Maintenance of harmony and proper intercourse among the States;
4. Certain miscellaneous objects of general utility;
5. Restraint of the States from certain injurious acts;
6. Provisions for giving due efficacy to all these powers." [Fed41]
"THE SECOND class of powers, lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce, ..." [Fed42]
"The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest.
1. Of these the first is, the "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. ..." [Fed44]
"4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments: but as these are reserved for particular examination in another place, I pass them over in this. We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union." [Fed44]
Point 3: Madison is consistent with both points 1 and 2, by refering to government, the general government, and federal powers.
Article II, Section 1: "[The President of the United States] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, ..."
Point 4: Madison identifies the power "to make treaties; to send and receive ambassadors, other public ministers, and consuls; ..." [Fed42] as a GOVERNMENTAL power (See ""THE SECOND class of powers ...", in the previous point).
Hamilton's view is presented, in part, in Fed33.
"The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature 'to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof"; …" [Fed33]
[NOTE that Hamilton reworded the referenced clause, which though is correct in effect, it obscures the items comprising GOVERNMENTAL powers, that is "the foregoing Powers, and all other Powers".]
"What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?" [Fed33]
Article I, Section 8, Clause 1: "To lay and collect Taxes, Duties, Imposts and Excises, ..."
Point 5: As one of "the foregoing powers", the power to "lay and collect taxes" is a GOVERNMENTAL power. [Point 1][Fed41] However, Hamilton incorrectly, and without any constitutional basis, identifies it as a LEGISLATIVE power.
"I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution." [Fed33][Emphasis added]
Point 6: Under Hamilton's view, the GOVERMENTAL power "to make Treaties, ... ; and ... appoint Ambassadors, other public Ministers and Consuls, ..." is a LEGISLATIVE power. This is absurd since the House of Representatives does not participate in the making of treaties or appointments and LEGISLATIVE powers are "vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
[Referring to the 18th clause]
"But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare." [Fed33]
Point 7: Hamilton has no clue why the clause was introduced.
[Referring to the 18th clause]
"Without the SUBSTANCE of this power, the whole Constitution would be a dead letter." [Fed44]
Point 8: Madison knew why it was introduced.
[Referring to the 18th clause]
While no explanation is given, why it was introduced is easily ascertained. Under the Articles of Confederation, the was no separation of powers; that is, the expression "The United States, in Congress assembled, shall have the sole and exclusive right and power ..." was the authority.
Articles of Confederation
Under the Constitution, powers were separated into three departments. Without the clause, there would be no definite LEGISLATIVE power and that would either make the Constitution a "dead letter" or leave open the interpretation to Congress, the President, and the Supreme Court.
With the clause, the restrictive phase "which shall be necessary and proper for carrying into execution" is a limitation on the authority of Congress to make laws. A clause, in effect, ordered by the people.
One other point, for which I have yet to see any explanation, is the part which states "or in any Department or Officer thereof." The 18th clause is the only place where the authority to make law intersects with the legislative, executive, and judicial powers vested by the Constitution. In effect, this is the sole authority, to make laws governing the legislative, executive, and judicial departments. It follows that the clause is the sole authority to fix the compensation for members of Congress, the President and Vice-President, and Federal judges; to appropriate money to pay that compensation, and to raise revenue to make those appropriations. It applies, as well, to all other expenses (and other laws) for these departments.
Supreme Court Associate Justice Joseph Story, as DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY wrote his "COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES; ... in 1833. analyses Article I, Section 8, Clause 1, of the Constitution.
"§ 976. But the most thorough and elaborate view, which perhaps has ever been taken of the subject, will be found in the exposition of President Monroe, which accompanied his message respecting the bill for the repairs of the Cumberland Road, (4th of May, 1822.) The following passage contains, what is most direct to the present purpose; and, though long, it will amply reward a diligent perusal. After quoting the clause of the constitution respecting the power to lay taxes, and to provide for the common defence and general welfare, he proceeds to say,
§ 977. 'That the second part of this grant gives a right to appropriate the public money, and nothing more, is evident from the following. considerations: (1.) If the right of appropriation is not given by this clause, it is not given at all, there being no other grant in the constitution, which gives it directly, or which has any bearing on the subject, even by implication, except the two following: first, the prohibition, which is contained in the eleventh of the enumerated powers, not to appropriate money for the support of armies for a longer term than two years; and, secondly, the declaration in the sixth member or clause of the ninth section of the first article, that no money shall be drawn from the treasury, but in consequence of appropriations made by law. ...'"
It is clear that President Monroe (successor to Madison), having placed the appropriation of money in the first clause, and Justice Story (appointed by Madison), by supporting the claim, did not understand that the sole authority for appropriating money for their own compensation was the 18th clause. Furthermore, neither understood that the first clause is a GOVERNMENTAL power and, since a law is required to make appropriations, only the 18th clause could be used to make such law.
[A thorough reading of his Commentaries reveals that Story never understood Madison's view. This is evidenced by his repeated quotation and subsequent rejection of Madison's comments in favor of Hamilton's.]
Point 9: Presidents and Supreme Court Justices did not understand the Constitution by the 1830's.
United States v. Butler 1936, 297 U.S. 1
"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."
Article I, Section 8, Clause 1: "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;"
The phase mentioned in the first sentence of the quote from Butler is "to ... provide for the common Defence and general Welfare of the United States". The sharp "differences of opinion", not recognized by the Court, was the distinction between Hamilton's LEGISLATIVE and Madison's GOVERNMENTAL powers.
The assertion attributed to Madison, in the second sentence, is a misunderstanding of Madison and conflation with Hamilton's view. Madison did not consider the first clause to be a LEGISLATIVE power and thus it would not be a "power to tax and spend for the general national welfare"; but rather a GOVERNMENTAL power to tax, qualified by the attached phrases. "But what color can the objection have, when a specification of the objects [GOVERNMENTAL powers] alluded to by these general terms [common defence and general welfare] immediately follows, and is not even separated by a longer pause than a semicolon?" [Fed41] But Madison new that the power to make treaties was also a GOVERNMENTAL power and that it was not in the "same section". "For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?" [Fed41] In effect, "these and all others", being a reference to powers, maps to "the foregoing powers and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof".
Having previously explained my objections to both Hamilton and Story, I will skip to the last sentence which I will rephrase as "It results that the power of Congress to authorize expenditure of public moneys for public purposes is limited by the direct grant of legislative power found in Article I, Section 8, Clause 18, of the Constitution."
Point 10: The Supreme Court didn't understand the Constitution in 1936.
I have yet to see a simple explanation of the term "the common defence and general welfare of the United States", but Madison provides hints. "We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union." [Fed44] This and other statements suggests, to me, the explanation: The common defence and general welfare of the United States consists of those powers the delegates determined were necessary and proper for cooperation of the states in military and civil matters. This explanation being applicable to both the Constitution and, with the substitution of 'states' for 'delegates', in the Articles of Confederation.
In summary, Alexander Hamilton made a mistake in 1788. James Madison then spent more than 40 years trying to explain what happened in the Second Constitutional Convention and why "to provide for the common defence and general welfare" wasn't a substantive power. A letter dated Nov 27, 1830, to then Speaker Andrew Stevenson, appears to be Madison's last try before his death. Thus by 1830, Congress and the Courts were expanding and, since, continued to expand the powers of government beyond that ever intended by the Constitution.