Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/47

Rh to exercise every power which may be alleged to be necessary for the common defense or general welfare.” The Federalist No. 41, p. 262 (C. Rossiter ed. 1961). Similarly, in rebutting Patrick Henry’s warning that the Clause would vest a regulatory power, Governor Randolph observed: “You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to anything else, in order to make it that formidable power which it is represented to be.” 3 Elliot’s Debates 600. Again and again, leading Federalists represented the General Welfare Clause simply “as qualifying the fiscal power.” E. Corwin, The Spending Power of Congress—Apropos the Maternity Act, 36 Harv. L. Rev. 548, 552 (1923) (citing The Federalist Nos. 30 and 34 (A. Hamilton), and 41 (J. Madison)). “It was generally understood” by the Constitution’s ratifiers “that the General Welfare Clause did not confer power to regulate”; such regulatory powers were conferred only by specific enumerations such as the Commerce Clause. T. Sky, To Provide for the General Welfare 67 (2003) (Sky).

Thus, even if one implausibly regards the General Welfare Clause as a “Spending Clause,” it is unambiguous that the Clause confers no independent regulatory power. Importantly, the same holds for every other plausible textual anchor for Congress’ general spending power. First, the Necessary and Proper Clause is a natural candidate for the spending power because spending funds may be “necessary and proper for carrying into Execution” the Federal Government’s enumerated powers. Art. I., §8, cl. 18; see G. Lawson & G. Seidman, The Constitution of Empire 30 (2004) (Lawson & Seidman) (“This ‘Sweeping Clause’ … unquestionably includes the power to enact spending laws that are ‘necessary and proper’ for effectuating federal powers”); K. Stith, Congress’ Power of the Purse, 97 Yale L. J. 1343, 1348 (1988) (arguing that the Necessary and Proper