Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/44

12 At the outset, while Congress undoubtedly possesses the power to direct the expenditure of federal funds, it is important to note that the Constitution contains no “spending clause.” From the beginning, some have located the spending power in the General Welfare Clause, and that view has generally been accepted by this Court’s modern doctrine. See Engdahl, 44 Duke L. J., at 53, and n. 220 (describing Alexander Hamilton’s views); South Dakota v. Dole, 483 U. S. 203, 206 (1987). Yet, there are serious problems with that view.

The General Welfare Clause is simply part of the Taxing Clause, which reads in relevant part: “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.” Art. 1, §8, cl. 1. By its terms, the only authority vested by this text is a power to “lay and collect Taxes, Duties, Imposts and Excises.” This power is then qualified by the Debts and General Welfare Clauses, which limit the objects for which Congress can exercise that power. The General Welfare Clause is thus most naturally read as a qualification on the substantive taxing power.

Consider also that the General Welfare Clause references not only the “general Welfare” but also “the common Defence.” If the Clause were construed as an affirmative grant of power to spend for the common defense, it would make redundant Congress’ powers to “raise and support Armies” and to “provide and maintain a Navy,” also found in Article I, §8, cls. 12–13. Thus, “[i]f the reference to ‘common Defence’ spending simply alludes to power conferred elsewhere,” then it seems illogical to consider the terms “general Welfare” as the source of a freestanding power to spend for whatever purposes. D. Engdahl, The Basis of the Spending Power, 18 Seattle U. L. Rev. 215, 222 (1995).

The Taxing Clause is also a strange candidate for the