I don’t know. But if it is based on the criteria of South Dakota v Dole, then NCLB is tied to a specific Federal interest, the conditions on any funding is clear, it isn’t unconstitutional, and the conditions are not coersive.
Isn’t that what the ACA decision did? The court rejected the ICC argument but said the health care requirement was a tax. Roberts snuck a roadblock to ICC into precedent while avoiding the activist judge label, yet giving the finger to legislators who expected him to do what they couldn’t.
The stick for NCLB compliance was the loss of 10% of Title I funding. As Ravenman puts it, not enough of a cut to be coercive (probably.)
Such an interpretation doesn’t hold up to more than a few moments of thought. Forget that the founders themselves said that the feds were one of few and limited powers. Forget that the clause only speaks of enacting taxes and paying debts for the general welfare. Forget that the 10th amendment exists.
The best argument against this type of expansionist thinking is how absurd it would be to list the powers of the federal government if it simply defaulted to “anything they damn well please.”
Why, for example, the need to say that Congress has the power “To establish Post Offices and post Roads”? Isn’t that in the general welfare? Isn’t it a necessary and proper regulation of interstate commerce? Wouldn’t a good subject of international treaties be postal maintenance for communications between countries? Why the need to list such specific things if every single aspect of life can be rolled into the general welfare clause?
At least to me, the listing of such seemingly mundane things only reinforces my belief that the founders meant for Congress to only have those powers and that spending for the general welfare, or doing necessary and proper things, or enacting treaties were only to be done for the purposes of effectuating those enumerated powers.
jtgain, Isn’t the argument against this that the founders realized that they could not anticipate every need of a new and growing nation and so deliberately put in a clause that would allow action in unspecified areas because limiting it to those areas is what would be absurd.
The general welfare clause is one of the most debated so there is no one single “right” interpretation. “Anything they damn well please” has indeed been rejected by the courts. But my understanding is that so is your limited to “effectuating those enumerated powers” interpretation.
But is that the case?
We take for granted the social changes brought by technological change, producing new circumstances. Since about 1800, technology each generation lived in noticeably different times than their parents. In 1780, before the industrial revolution was obvious, was “unforeseen changes” a concept anyone would recognize? Or would people just think their world was simply getting more settled, but this generations issues were no different than the last few?
What the heck are you talking about?
The general welfare clause is not an independent grant of power. It’s a qualification of the taxing power, as Thomas Jefferson made clear:
Congress has never grounded any legislation in the general welfare clause, apart from spending. In other words, Congress has never said, “We have the power to legislate in this area because of the general welfare clause.” The Supreme Court has thus never ruled on an attempt to do so.
I am not aware of any authority that holds otherwise.
When you say the clause is “one of the most debated,” by whom, and under what terms, do you mean? Congress has never ever used the general welfare clause to justify subject matter jurisdiction.
The same thing you are, apparently, since your words are an extremely close paraphrase of this authoritative page, SPENDING FOR THE GENERAL WELFARE - without bothering to mention the following interesting paragraphs.
I’m not about to argue your considerable knowledge of law. However, it’s possible and perhaps likely that I’ve done more reading in history than you have. The arguments over what type of government the U.S. would have, both in theory during the Constitutional debates and in practice as first Hamilton and then Jefferson and Madison developed frameworks, are a particular interest. Whether Congress has argued this or not, it appears that the courts have and have settled the matter against jtgain’s interpretation.
I may be reading that page incorrectly. IANAL. I would like to be corrected on my failings in law, however, and not on your failings in history.
And this is the part I don’t get but maybe it is the Federalist in me. Are not “Federal Interests” enumerated in I,8? Why can the Federal government step out of their limited powers and declare anything they want to be a federal interest. At least with the highway it ties into ICC and free movement between states (although I agree with O’Conner that neither one of those has anything to do with legal drinking age) but nowhere in the Constitution does the Federal government have any interest in education except in Washington D.C. and territories/possessions.
Isn’t every federal activity performed by spending money? If the restriction is that the only thing they can do by the welfare clause is spending money, that’s no restriction at all.
That’s not a terrible question, actually. As far as I can tell, NCLB and the underlying Elementary and Secondary Education Act have never been challenged as a federal overreach. This is probably because nobody has standing to challenge because they don’t harm anyone. If you’re a state, you can’t demonstrate harm because you can refuse Title I funds. If you’re a child or parent, you don’t have taxpayer standing because it’s not an Establishment Clause issue.
I suspect the ESEA would have been upheld as a valid exercise of Congress’ 13th and 14th Amendment powers anyway since its purpose is to ensure “equal” educational opportunities.
Just taking the opportunity to point out–once again–that this legal question will be at the heart of the next century of litigation. It is called the unconstitutional conditions doctrine, and it is woefully underdeveloped, but completely necessary and arising more and more often. If any law students out there are looking to go into academia, you can write yourself a golden ticket by finding something original to say about this.
In particular, the trouble is defining what is and what is not coercive. If the federal government offers the state some benefit that is better than what the state would get in the absence of any federal action, is that coercion? If I offer you $1000 to wash my car, have I coerced you? What if I’ve been paying you $500 just to wash the windows, does that make my $1000 offer a coercive one? I wouldn’t have thought so. But the ACA opinion on the Medicaid expansion seems to cast some doubt on that.
There are 1,300 law review articles about it (not including the ones that are only in Hein) so I don’t know that it’s that underdeveloped (though in fairness there are already 700 about the Affordable Care Act.)
It’s underdeveloped in two senses: (1) the courts have had very little to say about it, and most of what they have said is incoherent; (2) the academic writing about it is still very protean–with basically four or five articles constituting the canon on the subject notwithstanding hundreds of articles essentially saying nothing original, none of which have been taken seriously even at the district court level–and in which we’re still discussing whether there can be a coherent doctrine of coercion that applies to different kinds of rights or not, and whether cases like Nolan are part of that doctrine or not.
No – they can criminalize actions. Can Congress create a federal criminal law that punishes a punch in the nose? No – absent some federal nexus, like the nose belonging to a Congressman or an FBI agent.
And that’s the debate here. Congress passed a criminal law; Bond was charged under it. Did Congress have the power to pass that criminal law?
I did not intend to claim that no figure in American history ever suggested the General Welfare clause grants Congress broad legislative power.
I am only saying that Congress has never – apart from their spending power – claimed that any law they passed was justified by the General Welfare clause, nor has any court held that Congress has authority to legislate in a particular area because of the General Welfare clause – again, except insofar as it involved Congress’ choice of what to spend money on.
This case involves Congress making something illegal – making it a crime. Congress can only create crimes in areas in which they have the power to legislate – those powers granted to them by the Constitution. States are not limited in the areas they can cover by legislation: states have unqualified, absolute reach in the areas they can cover by legislation – except if those areas belong to Congress.
I heard that a couple of states, in particular Utah were willing to forego the Fed’s money so as not to be under NCLB but then why does every state follows NCLB? I even emailed Utah’s Dept of Education for research I was doing but never got a response. I heard (and in no way even claim it’s true) that they were sued because not abiding by NCLB means a loss of Title I money which would mean Utah was discriminating against minorities but my research found no indication of such a lawsuit.
But I’m still wondering how you came up with NCLB as a slavery issue.
I was thinking of the standing issue. Like we saw with the Obama birther controversy, the real issue was if there is a Constitutional issue, it does not have to be addressed by the Courts because of the lack of standing of those indirectly affected. So let’s say government funding of education is unconstitutional. Let’s say that some SJD writes a brilliant paper that unquestionably demonstrates that Federal funding of education is unconstitutional. Everyone agrees that there is a general harm because eliminating Federal funding of education would either lower taxes or increase funding for other programs but those that are directly affected by the funding are not only not harmed but actually benefit from the unconstitutional actions.
Given those circumstances, who could actually file a suit? Is it a problem that a clearly unConstitutional act is still legal (or rather not illegal) because of lack of standing and blame John Marshall that judicial review is done in the Courts?
And, as an interesting side note, the Parliament of Canada similarly lacks authority to regulate hunting. Except, by virtue of that same treaty, the Migratory Birds Convention, Parliament can enact laws to enforce the treaty, under the similar Canadian treaty power.
As a matter of policy, the federal law is mainly used to protect endangered species like whooping cranes, rather than general regulation of duck-hunting.
And they have other treaties and a constitution saying they cannot enforce that against treaty Natives.
Congress had broad authority to legislate against “badges and incidents of slavery”, one of which is segregation.
A member of Congress might be able to sue. However, SCOTUS has already ruled that Congresscritters don’t have standing to challenge their own unconstitutional delegations of power, so I doubt they have standing to challenge their own overreaches.