Policies with good intentions do not escape tests of constitutionality.
Axios reported that Elizabeth Warren would be releasing a policy plan for universal childcare.
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.
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.
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
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.
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.”
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.
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.
the following from Federalist
the subject of the Necessary and Proper Clause:
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?
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.
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.
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.
we end up with a presidential candidates who propose universal childcare. To be fair, Ivanka’s paid family leave is
just as horrendous.
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.
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.
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
Reagan said that the most terrifying words in the English language were “I’m from the government and I’m here to
he right…Not only is that help constitutionally impermissible, it, in all likelihood,