A question for constitutional conservatives

Whether or not it’s “paid for” by offsetting cuts in programs you dislike, where in the Constitution do you find the explicit enumerated power of Congress to spend federal taxpayer dollars to help victims of storms and floods?

Just wondering.

Comments (35)

  1. Submitted by Thomas Swift on 09/26/2011 - 02:32 pm.

    Yours is nothing but another arrangement of the invalid argument that if one does not support Social Security, one is a hypocrite for accepting it’s payouts.

    A true constitutional conservative would quickly, and correctly, advise you that the Constitution grants no disaster relief powers.

    But as long as the federal government continues to extract taxes from the states far in excess of what is needed to execute the powers it *is* granted, it’s not realistic to fault states for their claw-back.

  2. Submitted by Eric Black on 09/26/2011 - 02:54 pm.

    Hi Tom,
    We are nearly in agreement, but you misunderstood the implication of my snide question. I agree with you that as long as the federal government is doling out aid, it’s reasonable for every state to take their share, even if the governor, for example, may disagree with the program or believe that it exceeds constitutional authority.
    And I agree with you that a let’s say Bachmann- or Perry-style constitutional conservative — who argues that Congress is limited to a very small list of EXPLICITLY enumerated powers, and who are running for president, need to say clearly that in their view FEMA (and Medicare, and Social Security and the CIA and quite a few other things) were created in violation of the Constitution and should be defunded and dismantled with full authority for those functions devolving back to the states and the individual citizens. And they should promise that if elected president, they will make full use of the constitutional powers of that office to bring about said defunding, dismantling and devolving.
    The point of my snide question is that they are highly selective in the application of constitutional conservative principles and therefore they don’t seem like principles at all but just political talking points.
    Please forgive me for not making that clear on the first found. Cheers,

  3. Submitted by Paul Brandon on 09/26/2011 - 03:18 pm.

    Of course:

    “CONSTITUTION OF THE UNITED STATES
    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare,….”

  4. Submitted by Eric Black on 09/26/2011 - 03:48 pm.

    But Paul, here’s the rub (in my humble view).
    If admonitions as general as those imply any powers that any future Congress might think will make the union a little more perfect, or promote something as wide open and subject to interpretation as the general welfare, then there are virtually no limits on what powers the federal government can assume.
    Maybe that’s right, although there’s a lot from the drafting and ratifying history to suggest that the framers and ratifiers had in mind a more limited grant of authority from the states to the feds.
    The modern tenthers or Bachmann- Perry-style constitutional conservatives start at the other extreme. They seem to argue (although as my snide question is meant to imply, they don’t have the nerve to make it clear and concrete) that only powers EXPLICTLY granted, for example the relative few and somewhat obsolete list of powers enumerated in Article I, Sec. 8, exist and everything beyond those few is an extraconstitutional power grab.
    (They have an additional problem, in that the “general welfare” language from the preamble is included in Art. I., sec. 8, along with power over interstate commerce and the “elastic clause.”)
    As a matter of politics, on the other hand, I suspect the strict constructionist tenthers know that — irrespective of what they may regard as the theoretical purity of their position — the country has no interest in doing away with Social Security, Medicare, the CIA or FEMA.
    Maybe I’m wrong about that. If so, they should be clear about the implications of their constitutional conservatism and run on it.

  5. Submitted by Dennis Tester on 09/26/2011 - 04:15 pm.

    Disaster relief has always been a states’ responsibiity, with the governor traditionally calling out the national guard to assist with flood preparation, rescue, etc.

    Since the POTUS has been using his authority to direct the use of national guard forces as a way of supplementing the regular army, the use of FEMA has been a sort of trade-off or payback to the states when disaster strikes and their national guard is unavailable to help because they’re in Afghanistan.

    Otherwise, victims of floods and other natural disasters should turn to their property insurance company for relief.

    If citizens are willing to provide disaster relief programs through their state and local governments to aid their neighbors in such situations, that certainly is their perogative to do so, but it is a service they’ve agreed to provide out of the kindness of their hearts and not because government mandates that such a service exist. It certainly is not a role for the federal government.

  6. Submitted by Thomas Swift on 09/26/2011 - 04:34 pm.

    Eric, you *do* recall Bush’s plan to partially privatize SS, don’t you? Perry has rightly described SS as a Ponzi scheme (we concluded that the only difference lies in who’s running it, and what you call it in the comments of one of your own posts), and Bachmann has said she’d shut down the Dept. of Ed.

    Aren’t you just tic’d because they’re choosing their words more carefully now?

  7. Submitted by Joe Musich on 09/26/2011 - 04:59 pm.

    Ah yes politics is the slicer and dice of the good old preamble(interesting word preamble_before we walk?) Not long ago the former pres put tighter strings on aid to African nations that a price is still being paid for. You all remember that? I think the question is not very pointed and is just plain old provocative in nature. Much of what happens in our government depends on plain old trust. In the atmosphere we exist into today no matter how much is enumerated in our founding document if a group holds to it’s agenda rules won’t mean a thing. Don’t misinterpret my words old one side in this argument is out of bounds.

  8. Submitted by Eric Black on 09/26/2011 - 05:13 pm.

    Dennis, you have the true tentherist/constitutional conservative position on the question, except for the idea that the Constitution authorizes some kind of weird trade between the feds and the states to make up for the fact that the national guard is sometimes nationalized. The Pres. does have explicit authority to nationalize the state militias, although I don’t know where — under a strict constructionist reading — he would get authority to trade disaster relief to the states for Guard’s military services.
    And do the tentherists who are running for president — specifically Bachmann and Perry — have the same position as you that federal disaster relief is unconstitutional? I haven’t heard them say so.
    Tom, you’re #6 is a bit of a muddle. The Ponzi Scheme metaphor is full of holes and I’d be surprised if you weren’t aware of the holes. But do you mean to imply that if Pres. Bush’s partial privatization scheme had worked, that would have solved the constitutional issue that Perry raised? Where would the Congress and the Prez derive the constitutional authority to command ever American worker to divert a portion of his or her wages into an retirement account and invest it with government-chosen financial firms?

  9. Submitted by Dennis Tester on 09/26/2011 - 05:25 pm.

    “promote the general Welfare,….”

    Promote does not equal “provide for.” I can promote the use of body deodorant with my students but I’m not going to buy it for them.

  10. Submitted by Paul Brandon on 09/26/2011 - 06:06 pm.

    Eric–
    Your points are, as usual, good ones.
    Short of a mind reader in a time machine, we will never no what Tom, Ben and the boys had in mind.
    It does appear that, in their wisdom, they were trying to balance a desire to constrain the power of the federal government with the knowledge that they could not anticipate all of the future exigencies which the federal government might have to deal with.
    I still think that if they had agreed with the tenther/TP position they would not have added the ‘general welfare’ statement.

    So the explicit answer to your original question is that disaster relief (and much of the rest of what the Federal government does) is not an explicitly enumerated power.
    The metaquestion is whether that question itself is relevant to the world of the 21st century.

  11. Submitted by Jon Kingstad on 09/26/2011 - 06:36 pm.

    “Disaster relief” is a catch-all for an array of relief programs for “disasters” like floods, hurricanes, earthquakes, volcano eruptions, terrorist attacks, epidemics, plague, etc. A number of these programs are really programs which fund already existent state programs. The country got into the business of “flood relief” after it became clear that the traditional fix for floods in the nations rivers, i.e. building dams and levees, wasn’t working. In fact, these programs were making the floods that did happen worse. States have no historical authority to dam or levee rivers and streams. That has historically belonged to Congress under under the “commerce clause” (Art. I sec. 8)). The National Flood Insurance Program which is administered by FEMA jointly with the states, also includes funding and model regulations to ensure that people don’t build or develop in flood prone areas. (That’s been working so well). The Federal government regulates in this area more by the “carrot” of funding incentives for states which participate in the program, by setting up the mechanisms for declarations of disasters (by the Governor) than by regulation. So where’s the Tenth Amendment argument here?

    The Tenth Amendment was never a viable constitutional objection until the 1937 decision of US v. Butler, which took an 1895 decision in a (since) discredited antitrust case to reason that things like “farming and manufacture” were not commerce and therefore subject to the Tenth Amendment.

    The Social Security Act cases overthrew that absurd distinction based on practicalities and necessity. A lot of the same logic applies to the health insurance issue today. States have authority to “regulate” insurance by virtue of authority granted by Congress under the McCarran-Ferguson Act. Congress can repeal part of that to ensure uniform and rational national health care by providing for federal regulation and taxing of health insurance.

  12. Submitted by Paul Brandon on 09/26/2011 - 07:57 pm.

    Eric–
    Didn’t G. Washington nationalize the state militias?

  13. Submitted by Neal Krasnoff on 09/26/2011 - 10:14 pm.

    Nope, that was in 1916.

  14. Submitted by Dennis Tester on 09/27/2011 - 08:03 am.

    “except for the idea that the Constitution authorizes some kind of weird trade between the feds and the states to make up for the fact that the national guard is sometimes nationalized.”

    Eric, I didn’t mean to imply that this was a constitional provision, only that this is the implicit arrangement between politicians, constitutional or otherwise.

  15. Submitted by Paul Brandon on 09/27/2011 - 08:40 am.

    Then how was the Continental Army formed?

  16. Submitted by Bill Gleason on 09/27/2011 - 09:31 am.

    The problem that Swiftee and other constitutional conservatives, e.g. Bradlee Dean, have is that there AREN’T very many enumerated powers.

    Certainly not Social Security or disaster relief.

    And yet, even President Bush realized that federal disaster relief is perceived by the electorate to be desirable.

    “The president [Bush] wants to travel to California to witness firsthand what the people there are going through with these wildfires,” White House press secretary Dana Perino said. “He wants to ensure that the state and local governments are getting what they need from the federal government and he wants to make sure to deliver a message in person to the victims that he has them in his thoughts and prayers.” Reported by the AP

    Eric’s point seems to have gone right over Swiftee’s head. Enumerated powers do not mention many of the things the government can and should be doing.

    We are not living in the 1700s, Swiftee. Despite what you may have heard on the “Patriot.”

  17. Submitted by Thomas Swift on 09/27/2011 - 11:03 am.

    “The problem that Swiftee and other constitutional conservatives, e.g. Bradlee Dean, have is that there AREN’T very many enumerated powers.”

    Dragging “Bradlee Dean” into this conversation, apropos of nothing (Prof. Gleason’s daydreaming withstanding), probably alerted the thoughtful reader that what follows would likely be of limited value, but what preceeded makes us sctratch our heads.

    Do we really need to point out to the Prof. the fact that the constitution doesn’t enumarate very many powers isn’t a problem for conservatives, quite the contrary it supports our contention?

    Gleason set the table for an argument in favor of his opinion that “enumerated powers do not mention many of the things the government can and should be doing”, but he’s failed to provide anything of substance (or even rationality IMO).

    Would you like to take another swing at that Prof?

  18. Submitted by Aaron Sinner on 09/27/2011 - 11:10 am.

    #15 Paul–

    The Continental Army was pre-Constitution. Pre-Articles of Confederation, even.

  19. Submitted by Paul Udstrand on 09/27/2011 - 12:23 pm.

    Even if we were living in the 1700’s tenthers would be in trouble. The founders created a federal government because they realized that 13 colonies operating a lose confederation simply couldn’t survive. There are times when you have to combine state resources in order to cope with big problems. Tenther’s seem to ignore the flip side of their argument, why not just cut a state lose when it get hits by a disaster? You can’t have it both ways in the real world. That’s what the Civil War was about.

    Again, this issue with Tenther’ isn’t their interpretation of the constitution per se- it’s their approach of treating the constitution like scripture instead of text that needs to be interpreted. Whenever you ask a question like Erik’s you’ll get a fundamentalists response driven by ideology rather than analysis. This is why arguments with these so-called conservatives always feel more like religious debates instead of political debates.

  20. Submitted by Howard Miller on 09/27/2011 - 01:33 pm.

    feel like a minnow trying to swim in a lake full of walleye and bass, trying to post in this topic. but here goes …

    I have always wondered why people have been dismissive of the 9th Amendment on the enumerated powers question. It reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    We, the people, decided that we have rights to social security, federal emergency disaster relief, etc., and we have insisted that our federal government be the vehicle to deliver those. We voted in elected representatives who implemented our will.

    With the 10th Amendment, which says the states and the people have the power to do that which the federal government is not specifically authorized by Constitutional language. That does not bind, specifically limit, what we may ask of our government – unless specifically prohibited by Constitutional language. If we don’t like the restrictions specifically spelled out, we don’t do it or we change the Constitution.

    But i think Mr. Black has it right in his provocative initial post – there are few limits on federal power, if we the people ask that of it.

  21. Submitted by Thomas Swift on 09/27/2011 - 01:34 pm.

    “There are times when you have to combine state resources in order to cope with big problems.”

    Right. And those times are codified:

    1. Providing for the common defense

    2. A central authority to regulate Interstate Commerce

    That’s it. Anything else is expressly reserved to the states. (The SCOTUS has already ruled that “Promoting the General Welfare” does not imply legislative power much to the dismay of those that think it means “food stamps”.)

    As far as disaster relief is concerned, one wonders (listening to leftist apologists) how Haiti, or Somalia, or Japan, or any other reciepient of our Largesse can be as well served as they are.

    I’m not aware that Haiti was a signatory of the US Constitution.

  22. Submitted by Paul Brandon on 09/27/2011 - 01:37 pm.

    Aaron–
    True….
    He WAS President, but not acting under powers delineated by the (yet to be written) Constitution.

  23. Submitted by Bill Gleason on 09/27/2011 - 01:52 pm.

    Swiftee has a hard time reading.

    “Gleason set the table for an argument in favor of his opinion that ‘enumerated powers do not mention many of the things the government can and should be doing’, but he’s failed to provide anything of substance”

    That would be Social Security and disaster relief. Examples I gave of non-enumerated government programs that the majority of Americans agree with.

    An extra at bat is not necessary, Swiftee.

    You’ve already struck out.

  24. Submitted by Jon Kingstad on 09/27/2011 - 02:12 pm.

    Mr. Swift: Apparently you are not aware that the Constitution authorizes Congress to do a lot more than “provide for the common defense” and “regulate interstate commerce.” Article I, sec. 8, clauses 1-6 provide:

    “The Congress shall have Power 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;

    “To borrow Money on the credit of the United States;

    “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

    “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

    . . .”

    The last clause of Art. I, sec. 8 states:

    “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.”

    Why wouldn’t foreign aid to Haiti, or Somalia or Japan be “necessary and proper” to regulate foreign commerce with those nations?

    Does the power to “coin money, regulate the Value thereof, etc.”, mean Congress cannot print paper money in your view? Maybe you think paper (or electronic) money is also unconstitutional?

  25. Submitted by Thomas Swift on 09/27/2011 - 02:56 pm.

    “That would be Social Security and disaster relief. Examples..of..government programs that the majority of Americans agree with.”

    Sorry Prof. that won’t do.

    You see, this whole discussion is prompted because 1. The Tea Party has raised the question of what the majority of American’s do agree with and 2. Even if it is found that they do agree, to take an example that leftists love to use, at one time the majority of American’s agreed with slavery.

    Your going to have to do better, Prof. this isn’t Twitter.

    “Why wouldn’t foreign aid to Haiti, or Somalia or Japan be “necessary and proper” to regulate foreign commerce with those nations?”

    That’s the sort of thinking that got us into this mess in the first place. We’ve certianly proved the Federal government’s skill at parsing the meaning of “commerce”, and it is true that in some cases, the SCOTUS has warranted the abuse of English.

    But there is (thankfully) still plenty of maneuvering room to reign the Fed in.

  26. Submitted by Jon Kingstad on 09/27/2011 - 06:51 pm.

    Mr. Swift: Maybe you’d better define what “mess” you’re talking about here. I agree the country is a heck of a mess but I’m just guessing you and I might not agree what it is. Most problems today faced by “this country” are not problems that can be solved by individual states or even states through compacts. Frankly, States are completely obsolete ideas based purely on historical accidents. Most of what the “states rights” crowd is whining about deals with not being able to screw their own citizens with impunity. Or at least the loss of federal largesse. Tentherism is totally bogus issue which is not surprising considering who’s trying to make it so.

  27. Submitted by Kurt Nelson on 09/27/2011 - 07:32 pm.

    Mr.Swift, the Tenth is tautology and carries no weight with SCOTUS as you should know. Other than the brief period during the New Deal, the argument for the Tenth having any meaning is pointless. Last term the Court rejected once again the argument put forth by the Administration in Comstock that a Tenth defense was meaningful. 7 of 9 rejected the Tenth, with only Thomas and Scalia accepting the claim the Tenth has any meaning whatsoever in our jurisprudence. Though to be fair, Printz in the late 90’s affirmed the Tenth narrowly with regard to federalizing local police, but that is about it for the past 70 years.

    In general the Constitution is illustrative of powers, not an absolute listing of enumeration. The strict reading rejects the foresight the Framers had by purposely making the document short, without a long list of things the government can and cannot do. I do not remember seeing in the second a mention of automatic weapons, or revolvers for that matter. But, after Heller, this right is now constitutionalized, all without specific enumeration.

  28. Submitted by Paul Udstrand on 09/27/2011 - 09:04 pm.

    Thank you Mr. Swift for demonstrating my point so succinctly. Your literalist interpretation that only contains two “codified” clauses that require no interpretation encapsulates perfectly the constitution as scripture mode of thought.

    Forget over 200 years of legislation, the rest of the constitution, dozens of court rulings, and common sense… these two clauses can only mean what you believe they mean. Fundamentalism at it’s most basic. Yeah, defense is main reason for collective resource, that’s why we refused to maintain a large standing army for 140 years.

    Why doesn’t it occur to tenthers that the authors of the constitution were simply concerned about leaving a void in governance? The idea wasn’t to deny federal control, but to make sure that in the absence of federal action, states wouldn’t be hamstrung, waiting for federal action, or crippled by the lack of federal action.

  29. Submitted by Thomas Swift on 09/28/2011 - 08:39 am.

    ” Frankly, States are completely obsolete ideas based purely on historical accidents.”

    Thank you Kim Jong Il

    “The idea wasn’t to deny federal control, but to make sure that in the absence of federal action, states wouldn’t be hamstrung, waiting for federal action, or crippled by the lack of federal action.”

    You deny there was any thought given to the consequences of an all powerful central government? Really?

    If Tenthersim is a fundamentalist religion, then your liberalized version is the agnostic’s view of freedom.

  30. Submitted by Paul Udstrand on 09/28/2011 - 09:40 am.

    //If Tenthersim is a fundamentalist religion, then your liberalized version is the agnostic’s view of freedom.

    Thank you again Thom. This is exactly how you frame the debate, and it perfectly illustrates my point about religious vs. political debate.

    The problem is that your frame is not universal, nor is it based on reality. The inability of a fundamentalist to imagine a religious liberal, or a liberal who believes in the constitution, as apposed to being agnostic, is a classic fundamentalists- black or white mindset. It is however a failure of your imagination, not a valid observation about reality. The fundamentalist division of people into one of two classes, believers or non-believers is artificial division that ignores the reality of “different” believers. know this: it’s possible for someone to believe in the constitution, believe in freedom, and NOT believe what you believe.

  31. Submitted by Thomas Swift on 09/28/2011 - 11:53 am.

    Oh Paul, give it a break.

    When leftist says he\she is religious, they are telling the truth, but they are speaking of a religion of their own design (that which fits their chosen lifestyles and decision making).

    When a leftist says he\she believes in the constitution they are telling the truth, but they are speaking of a constitution which can be twisted to support their chosen lifestyles and decision making.

    When a leftist says he\she believes loves America they are telling the truth, but they are speaking of an America that reflects the values expressed by vactioners to Fire Island.

    Truth, and reality for that matter, to the leftist, is relative.

  32. Submitted by Mitch Berg on 09/28/2011 - 11:56 am.

    “Why doesn’t it occur to tenthers that the authors of the constitution were simply concerned about leaving a void in governance?”

    Just guessing, but I’d start with the lack of any documentary evidence that this was the case…

    ” The idea wasn’t to deny federal control, but to make sure that in the absence of federal action, states wouldn’t be hamstrung, waiting for federal action, or crippled by the lack of federal action.”

    Well, it’s certainly an explanation .

  33. Submitted by Alec Timmerman on 09/28/2011 - 02:26 pm.

    Eric,
    What most conservatives, and apparently you, I guess, in this case, seem to neglect is that things do not happen in a vacuum. It’s nice, easy, and safe to consider our actions as independent amoeba floating around in our individual cultures, but the country doesn’t work like that.

    A problem in one state can infect all states. A problem in one person can affect their neighbor. You are all acting as if this disaster aid is a one way street, and the country is doing it out of charity. I’d be fine with doing it out of charity, but even so, it is done for practical reasons.

    We are all interconnected, as citizens and states. If a state goes broke paying for a flood or hurricane, it will affect and hurt the entire country.

    This country was founded as a collection of brave souls and states,and it has thrived as a collection of brave souls and states. This isolation movement, from each other, from our neighbors, and from state to state, is what is destroying our country.

    We have so many us against thems it is crazy. We are all us. My neighbor forclosing on his house and abandoning sucks for him, but in a practical sense it hurts me too. A hurricane in Louisiana sucks bad for them, but it hurts the whole country as well.

    Disaster aid is in the countries interests. It is not charity. It is practical. I am sick and tired of thinking that helping our neighbor is just charity. If you can’t do it because it is the right thing to do, do it because it is the practical thing.

    If the federal government cannot look out for the countries health, then what good is it? Looking out for states is looking out for the country.

  34. Submitted by Alec Timmerman on 09/28/2011 - 02:28 pm.

    Oh yeah, constitutional conservatives are just like christian conservatives. They are pickers and choosers. Very selective and relative.

    Citizenship rights do not apply to citizens because women were not citizens back then. Citizen rights do not apply to the modern definition of citizenship (Scalia)

    However, “Arms” applies to modern definition of arms, not just muskets and muzzle loaders.

  35. Submitted by Paul Udstrand on 09/28/2011 - 02:39 pm.

    //Oh Paul, give it a break.

    When leftist says he\she is religious, they are telling the truth, but they are speaking of a religion of their own design (that which fits their chosen lifestyles and decision making).

    Thanks again Thom.. keep em coming. You have perfectly described the concrete, fundamentalist mindset that is incapable of conceiving of a “leftist” that is in fact religious or patriotic. Only believers can be true Americans, that is… those who believe what you believe.

    Mich, I can only refer you to history texts, and you might want to look at the Federalist Papers. The framers were intelligent men, they understood that a constitution could not be all encompassing, would require interpretation, and needed to be flexible enough to cope with an unforeseen future. If your setting up a nation comprised of states, and you’re having the arguments they were having at the constitutional convention, you realize that states need to have some autonomy to cope with issues the federal government is ignoring, minimizing, dragging it feet, or simply not interested in. The arguments regarding these issues are well documented.

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