Saving Congress from Itself. James L Buckley
significant benefit of this arrangement is that it permits states and local communities to serve as laboratories for the development of a variety of approaches to shared problems.
Those were the virtues of the federalism that its framers built into our Constitution. They consciously limited the federal government’s authority to the handful of responsibilities they thought necessary to enable their new nation to function effectively; and with the enactment of the Tenth Amendment, they explicitly preserved the states’ exclusive authority over all other proper governmental concerns. That, at least, was their intention.
Unfortunately, those who insisted on the enactment of the Tenth Amendment have proven prescient. Over the years, successive Congresses and an accommodating Supreme Court have emasculated federalism to the point where there is virtually no exercise of federal power that the Court will deem unconstitutional. This has been accomplished largely through constructions of the Constitution’s Interstate Commerce and Spending Clauses. My concern here is with the latter, which, in relevant part, empowers Congress to collect taxes and other revenues “to pay the Debts and provide for the common Defence and general Welfare of the United States.” The mischief lies in the words “general Welfare.”
During much of our history, the prevailing view was that that phrase did no more than place a limit on Congress’s authority to spend by requiring that federal expenditures serve national as opposed to state or local purposes. Beginning with the 1937 case of Steward Machine Co. v. Davis, however, the Supreme Court has held that in its pursuit of the general welfare, Congress is authorized to provide states with funds to implement programs that Congress itself has no power to write into law. In 1987, in South Dakota v. Dole, the Court declared that the deference it owed Congress was such that it is “question[able] whether ‘general welfare’ is a judicially enforceable restriction at all.” Thus in pursuit of its unchallengeable understanding of what constitutes the public good, Congress is now empowered to use federal funds to “induce the States to adopt policies that the Federal Government itself could not impose,” to quote Chief Justice Roberts’ majority opinion in the case that found the Affordable Care Act, or Obamacare, to be constitutional. This is the source of Congress’s authority to enact most of the grants-in-aid programs now in effect.
In sum, although ours is understood to be a government of limited powers, the Supreme Court has construed one of those powers as providing Congress with the ability to bribe the states to adopt policies that lie beyond its own constitutional authority to prescribe—a position that caused Justice Sandra Day O’Connor to declare, in her South Dakota v. Dole dissent: “If the spending power is to be limited only by Congress’ notion of the general welfare, the reality . . . is that the Spending Clause gives power to the Congress . . . to become a parliament of the whole people, subject to no restrictions save such as are self-imposed. This was not the Framers’ plan and it is not the meaning of the Spending Clause.” So much for James Madison’s description of the federal government’s powers as “few and defined.”
Congress’ ability to bribe is not absolute, however. As the Court held in the Obamacare case, the law’s requirement that states expand their Medicaid programs was unconstitutional because the penalty for their failure to do so was so severe (the forfeiture of existing federal Medicaid contributions) that the states would be coerced into compliance despite their sovereign right to decline. The Court, however, finds no objection to noncoercive offers of federal money that are so economically or politically irresistible that a state has little real-life alternative but to accept them along with conditions that Congress has no independent authority to impose on them.
It is beyond dispute that these developments have effectively abolished the division of governmental labors that the founding generation felt was so important to the success of their new nation. Times have changed dramatically over the past two centuries, however, so the question today is whether we are better off as a result of this expansion of the federal government’s role in American life. In addressing that question, this book will deal only with the costs and effects of the federal grants-in-aid programs that offer states and communities various sums on the condition that the funds be used to implement policies designed in Washington. Thus my references to “federal grants” or “grants-in-aid programs” are limited to those offered to states and localities as opposed, for example, to a grant to a state university in support of medical research; and when I refer to “states” as grantees, that word should be understood to include their subdivisions as well.
What is important to keep in mind is that the states are free to decline to participate in grants-in-aid programs. That represents a recognition by Congress that the programs deal with responsibilities that lie within the states’ competence. That in turn raises questions over the practical merits (the constitutional niceties aside) of Congress’s involvement in areas that lie beyond those assigned to it by the Constitution.
THE HISTORY AND NATURE OF GRANTS-IN-AID
I became aware of the imaginative scope of federal grants programs when, on my retirement, I moved to a small community in northwest Connecticut and subscribed to a daily paper published in a nearby city. I soon found it filled with reports of federal grants in support of an astonishing variety of civic purposes. To cite just a few, they included financing for an art center honoring Katharine Hepburn, the grant of $1.5 million of federal highway trust funds to restore a vandalized train station that had long since been converted to nontransportation uses, funds for the purchase of a farm’s development rights in order to preserve a town’s rural character, money for the beautification of roads leading into a small industrial town, payment of eighty percent of the cost of replacing a one-lane bridge connecting two small communities a dozen miles from my home, and a grant for widening of sidewalks bordering two streets leading to a local school.
That last is my favorite example of congressional imagination. Those sidewalks in Plymouth, Connecticut (population 12,000) were to be widened with the help of a $430,000 grant from the Federal Safe Routes to School Program whose stated purpose, quite literally, was to fight obesity by encouraging children to walk or bicycle to school. To that end, in 2005, Congress created the five-year program and financed it with $612 million of federal highway trust funds. If Plymouth parents had been offered that money to help battle their children’s obesity, it is anything but obvious that broadening sidewalks would have been their weapon of choice. But that is beside the point. Congress created the fund and no one turns down money from Washington, not even Connecticut taxpayers who send $1.45 to Washington for every dollar they get back in federal grants. They accept the money because they know that those recycled dollars will otherwise be spent widening sidewalks in another state.
Lest anyone conclude that these quixotic examples are peculiar to Connecticut, herewith are some others gleaned from Senator Tom Coburn’s 2013 “Wastebook,” in which he reported particularly egregious examples of government waste: