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Elizabeth Warren Set to Release Bad Precedent

Policies with good intentions do not escape tests of constitutionality.

Yesterday, Axios reported that Elizabeth Warren would be releasing a policy plan for universal childcare.

As Trump declared a national emergency, the media and basically everyone on the left and the right, with the exception of the cult of Trump and those who were intelligent enough to posit a plausible legal basis for the emergency, were in high dudgeon within seconds of the announcement.  They bemoaned the bad precedent, the degradation of separation of powers, the autocratic nature of the Trump administration.

Yet the political realities of the United States remind us that one party has routinely flouted the constitutional limits on power.  It is the accepted policy of the Democratic Party to ignore federalism and its chief protector, the Tenth Amendment.  

From the Green New deal, to Medicare for all, to free college, Obamacare, the Great Society, and the original New Deal, the Democratic Party has embraced a platform that expands the size of government beyond what was necessary and proper, despite what Justice Roberts may say is within the federal government’s power to tax.

It is obvious that while there are separate concerns regarding the ability of the executive to act without congress, an equally frightening scenario involves all three branches of government ignoring constitutional limits on power to pursue liberal policy goals.

Axios says this regarding the plan,

Details: A source familiar with Warren’s proposal told Axios that access to child care would be free for any family living under 200% of the poverty line.

  • But no family, regardless of income, would ever pay more than 7% of their income for access to child care among the providers included in this proposal.
  • The plan would cost nearly $700 billion, per HuffPost. A source familiar with the proposal told Axios that Warren would plan to pay for this using part of the revenue generated from her wealth tax proposal.

The analysis listed in the article describes the plan as working within a patchwork of existing federal programs.  Yet this expansion surely runs afoul of federalism.  Aside from a Robertsesque reading of the power of the purse, the delegated and enumerated powers of the legislative branch cannot be read to include the power to run childcare.  Not even the great commerce clause could be used to justify its existence.  

The debate in the Federalist and Anti-Federalist Papers surrounding the Necessary and Proper clause proves useful in understanding Warren’s proposal.  It appears that Warren is relying on a legitimate government function, taxation, to construct this program.  While it is good to have a plan for how things are paid for, we have to remember that all laws meant to facilitate the execution of other laws are only permitted inasmuch as the actual law is written pursuant to the powers that congress already has.  Elizabeth Warren can propose a tax to pay for this, but that power to tax is of no use if the thing it is funding has no basis in the constitution.

Consider the following from Federalist 33

On the subject of the Necessary and Proper Clause:

It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?

If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution.

While the Anti-Federalists feared a national government hell-bent on using its power to subjugate the people of the states, Hamilton reminds them that even the most expansive reading of the proposed constitution imposed severe limits on what the national government could do.

When we read the Federalist Papers some two hundred years later, we have to see the form of government that was envisioned then.  We claim we know better and seek to reorder or society around the whims of men.  The constitution is tossed aside as a relic of a bygone age.  Supposed advancements in society take on new importance, eschewing the constitutionally prescribed means of affecting change.  Provisions and ideals are read into the text of the constitution.

And we end up with a presidential candidates who propose universal childcare.  To be fair, Ivanka’s paid family leave is just as horrendous.

These are powers that the federal government does not have.  If the various states wish to implement these, so be it.  Citizens of the states can choose whether or not they want these programs.

But even if there were some constitutionally permissible means of implementing this policy, the sociological ramifications are worth considering. Since the Great Society, the federal government has subsidized the destruction of the family.  Socialization via parental interaction and nurturing is transformed into socialization via strangers in a group setting. Not only are there consequences regarding the socialization of individuals, but the increased involvement of the federal government in the family sphere masks the true problem. 

Social economist Isabel Sawhill studied child poverty.  Her work found that the most effective means of reducing child poverty was not abortion, more government intervention, or liberal sexual ethics, rather, the most effective means were encouraging individuals to save sex for marriage, to reproduce only after marriage. Marriage results in a variety of better outcomes for children and spouses, ranging from financial, emotional, mental, and physical benefits.

When the state begins subsidizing another aspect of family life, the care of children, the family is no longer a foundational building block in society.  Children don’t need engaged and invested fathers, the government can take care of them when they aren’t in school.  Children don’t need engaged and invested mothers, they can be supervised by government employees from birth until college.

Ronald Reagan said that the most terrifying words in the English language were “I’m from the government and I’m here to help.”

Was he right…Not only is that help constitutionally impermissible, it, in all likelihood, damages society.


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