The clause modifies and is a qualification of the taxing power, not an independent grant of power. As Thomas Jefferson cogently observed:
Right–so why can’t health care be one of those areas of “general welfare” that our federal taxes cover?
Because nothing is covered via “general welfare”, it’s not a clause that grants the federal government power.
You have to understand that this is a bit of a weird argument. We threw the constitution out close to a century ago. Almost everything the federal government does now is unconstitutional. So it’s sort of weird to trot out “but it’s unconstitutional!” as a defense against specific programs.
I don’t get it. Seems simple. Intent is hardly some nebulous thing in law. You have the action and the intent behind it. The intent determines whether the action was okay or not. I’m not allowed to shoot someone except if it’s in self-defense in a life-threatening situation. Congress isn’t allowed to levy taxes except if it’s to provide for the common defense or general welfare. Wanting to collect taxes to pay for universal healthcare is pretty clearly meant to provide for the general welfare, and in fact I have a really hard time coming up with an explanation why healthcare wouldn’t be in service of the general welfare, whereas I don’t with mandatory cruise vacations, so where’s the problem?
The constitution (if we actually obeyed it) would have to grant a specific power for congress to implement the health care laws. It does not. Revisionists like to say “well, the commerce clause and the general welfare clause means we can do anything we want” but if you’ll see the Thomas Jefferson quote above, that’s the exact opposite of what the intention behind the constitution is.
The main purpose of the constitution is to be a specific, limited, enumerated set of powers by the federal government. We’ve chucked that out the window long ago. At this point it is both silly to object to, or promote something, based on constitutional ground. Let’s just be honest and admit it doesn’t matter in the slightest anymore.
For instance, you can find several places in the Constitution that specifically give different rights to people based on where they like to stick their private parts.
I think I see what you’re saying, in which case I’m still pretty confused. If the only power the Constitution grants is to levy taxes, but not to create infrastructure with those taxes, what’s the point of levying the taxes in the first place? “You’ll be better off if we take your money, trust me.”
Yes, it really does seem like the boat has sailed on that one a long time ago. It feels like people who are arguing over the constitutionality of things like national health care are trying to return to a fractured sort of country we haven’t had since the Civil War, the times when you identified as a resident of your state first and only then as an American.
In my view, it can.
However, the specific provision that imposes a penalty for failing to buy insurance may have some problems.
The argument is: if it’s not a tax, it’s unconstitutional because Congress has no authority to impose a financial penalty. If it is a tax, then Congress can impose it (Article I, § 8, Clause 1, as long as it’s geographically uniform) but it runs afoul of the apportionment clause in Article I, § 9, Clause 4: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census of Enumeration herein before directed to be taken.” In other words, Congress can’t just tax individuals; it can lay taxes only to states in proportion to their population.
But wait, I hear you cry. What about income tax?
Sure enough, income tax was found to be unconstitutional in Pollock v. Farmers’ Loan & Trust Company, with most taxes on income held to be unconstitutionally unapportioned direct taxes. The passage of Amendment XVI solved that little bump in the road, but only as to income tax: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
Now comes the health care “tax.” It’s not on income, and it’s not based on apportionment among the states based on population. In short, according to this objection, Congress can’t do it.
Taxing can be done to fund one of the specifically enumerated federal powers, and the way it must be taxed is to serve the purpose of the general welfare. For example, not taxing the whole country to give agricultural subsidies to corn farmers in Maine or something.
Innnnnnteresting. (I was actually hoping you’d be along, since your particular brand of nitpicking is very useful in conversations like these. :D) It is, of course, absolutely essential that health care coverage be mandated by law if you want to feasibly eliminate things like pre-existing condition exclusions. Otherwise the whole system will fall apart in very short order, as people will only pick up coverage when they’re sick and drop it as soon as they’re not.
I don’t suppose you know how the legality of universal health care shook out in other countries, i.e., if any of them had a similar problem with constitutionality and how it was resolved?
Thank you both, I understand the problem a bit better now.
Of course, in my personal opinion this is more evidence that the Constitution is nearing obsolescence if it hasn’t already crossed that line.
Nope, can’t help you.
But you’ll notice above that I spoke of “the argument,” rather than “my argument,” because I am not persuaded by it – although I admit it’s a bit more solid than I thought at first. Still, I feel the lesson of Florida v. Mellon, 273 U.S. 12 (1927), is instructive here. In Mellon, the state of Florida sued the federal government (specifically the then-Treasury Secretary Andrew Mellon), complaining that the method of computing federal estate tax was unfair, because the federal tax code gave back a credit for estate taxes paid to a state taxation scheme, and because Florida had no such estate tax itself, it contended that the estate tax was not uniform throughout the country.
Nope, said the Supremes:
Indeed. You tend to have the handle on *both *sides of the argument when it involves something legal, which is why you tend to be useful, 'cause then I can just have you spout it off instead of digging it up myself. Optimal slackitude: achieved. 
To say nothing of my proficiency in small-bore rifle shooting and single malt scotch batches.
I think they can and they will and conservatives will likely believe it. I only hope some of the new blood will have the guts to find a voice against the old school GOP and the independent voters will demand a reckoning for their vote.
wait… have you finally come around on the not-infinitely-elastic nature of the Commerce Clause?
Did you not read his later post?
I’ll repeat it again. Bush dreamed up the tax cuts that gave us a huge deficit. It is called the Bush Tax cut for a reason. Do you understand that?
The unfunded wars are real ,Bush did not pay for them with taxes. he did not pay for them at all. Just kicked them down the road. You must be aware of that.
Democrats make a huge mistake. They believe that a president gets elected to set policy. They do not over ride everything the prez proposes. They don’t reject all the judicial appointments, even in Bush times when he offers low level biased judges. It is the crime of believing in the validity of the system. The Repubs don’t care about that.
But then you did. Way to fuck up the thread, Bricker. Way to fuck up the thread.