I realize that what I’m about to ask is the intellectual equivalent of taking your date to a monster-truck rally, but where oh where in the U.S. Constitution is the national government empowered to govern the treatment of pets?
The New York Times has some details.
Do Senators Stevens and Lautenberg — who introduced the Pets Evacuation and Transportation Standards Act into the U.S. Senate — and the 349 U.S. House members who’ve already voted for this bill, understand what they did when they pledged to uphold the Constitution? Did they read the document? Are they illiterate? Dead-dog stupid? Or are they simply, well, politicians?
21 Comments
“the intellectual equivalent of taking your date to a monster-truck ”
Why the sneer? The event is interesting from a technical standpoint. If you have never seen one, why knock it?
As posted today on The Volokh Conspiracy:
From an anonymous student evaluation of my teaching, Constitutional Law, Spring 2006:
“Coming in to this class, I thought all people with his ‘lifestyle’ were morally depraved. Now I recognize that Republicans aren’t all bad.”
This applies to Monster Trucks too.
For those of us who didn’t sleep through first year con law, this one’s a no-brainer. The tax and spend clause allows the federal government to tax and spend on just about anything it wants to, as long as it doesn’t violate a specific constitutional provision in the process. My copy of the Constitution does not include a No Federal Dollars For Pets Amendment. Unless yours does, the new FEMA rules are no more or less constitutional than the old ones. Both address topics not specifically provided for in the Constitution. Both leave it up to state and local governments to either comply with the rules, or do without federal funding and go it alone. There is no nonfrivilous argument that makes one more constitutional than the other.
Perhaps the real question should have been, why oh why is a poster at a site called “overlawyered” asking a question so legally naive – “underlawyered,” if you will – that any second-year law student could answer it in his sleep?
Question for Xriq: So you are content to ignore the intention of the framers that Uncle Sam’s powers be limited to those powers delegated to it as enumerated in the Constitution?
Not at all. Contrary to popular lore, recognizing Congress’s 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” is not an end run around the enumerated powers doctrine; it is one of the enumerated powers. The first one on the list, no less. To argue that an instance of federal funding is unconstituitional as “not enumerated” is, in effect, to argue that every federal law must be authorized by at least two clauses of the Constitution rather than one. That’s silly.
So no, I’m not content to ignore the framers’ intentions about anything. I am delighted, however, to ignore your intent, which appears to be that “the general welfare of the United States” be twisted to mean “the specific welfare of those individual United States citizens who don’t own pets or require service animals, to the detriment of those who do.” Argue the policy issues of including pets all you want, but as a constitutional argument this is a non-starter. You might just as well argue that FEMA itself violates the Constitution by existing at all, on the theory that it doesn’t really benefit the general welfare, only the specific welfare of those individuals dumb enough to live in disaster-prone areas.
“Are they illiterate? Dead-dog stupid? Or are they simply, well, politicians?”
Aw, go ahead. Try for the record on repetitious redundancy.
🙂
“Suppose you were a congressman, and suppose you were an idiot. But I repeat myself.”—Mark Twain
First year con law teaches that “general welfare” is the same as “absolutely anything a politician can think of”? I guess I did sleep throught that day. What, exactly, does NOT fall under that clause, except for those few things we might agree that the constitution does expressly prohibit? Are you also of the opinion that “commerce” means “anything a politician can think of” also?
Matthew:
Nothing, which was exactly my point. This particular enumerated power is very broad, so I don’t see how anyone can mount a serious constitutional challenge, unless you want our courts in the business of deciding which federal expenditures do or do not promote the general welfare. Do you really want to give the line-item veto to five unelected judges?
No, but we’re not talking about the commerce clause, are we? Commerce is commerce. Methods of providing for the general welfare can be just about anything, or at least anything a politician would admit to supporting (who wants to be on record as opposing The General Welfare?!).
Xrlq,
The problem is that Washington takes a huge chunk of money, then ever-so-kindly “gives” it back to the states… with strings attached.
Over-simplified example: Congress enacts a 100% tax rate, and a 67% tax rebate for people who don’t own guns. Or people who are (or aren’t, as th whim takes them) Christians. Etc.
Sure, you still have the “freedom” to choose your religion, or to own guns, but the government just takes all your money.
Basically, it has allowd Washington to do an end run around EVERYTHING, simply by taking a bunch of money, then only giving it back if they get their way.
That is quite clearly and obviously violating the Framers intentions. As anyone but a lawyer could see.
Deoxy, no one disputes that it is unconstitutional for Congress to spend money in a manner that violates a specific prohibition of the Constitution. No enumerated power works that way. Congress cannot, for example, pass a law prohibiting blacks in one state from selling goods to whites in another, even though the Commerce Clause, if read in a vacuum, would authorize it. Ditto for a law purporting to patent a religion, create a post office that won’t deliver mail to Democrats, etc., etc.
That is not the issue here. The Constitution is silent on pets, so the fact that a particular statute affects pets does not affect its Constitutionality one way or the other.
That’s an argument against the policy, not its constitutionality. Contrary to popular belief, the word “unconstitutional” is not a synonym for “bad.”
Only because “anyone but a lawyer” is more likely than the average lawyer to have a naively idealistic conception of what the Framers’ actual intentions were.
Xrlq,
Most members of Congress would certainly agree with your view that the taxing and spending power of the federal government is a free-for-all.
But the framers of the Constitution, politicians through the Civil War, Supreme Court Justice Joseph Story and this law professor
http://www.ashbrook.org/publicat/oped/eastman/06/bread.html
Do not.
If you read Prof. Eastman’s historical analysis (he wrote a good law review article on this for the Chapman Law Review), you will see that this issue was contentious enough that early American federal politicians fiercely debated the Constitutionality of spending for interstate waterways.
But the earlier view is the only sound Constitutional view. It is inconceivable that the framers intended for federal powers to be enumerated AND for taxing and spending to be unlimited. Otherwise, why have enumerated powers? Why, under your thinking, couldn’t the federal government simply seize control of all private property and distribute as it sees fit? Or raise the income tax to 90 or 100 percent?
For many reasons, the Constitution is a dead letter, with the exception of a few favored amendments. But it isn’t commerce clause abuses, in my mind, that have done the damage. It’s the asserted power to tax and spend for any reason.
I would argue that the federal government’s power to tax and spend is limited to two things: Article I functions (the military, the patent office, etc.) and administrative support for Article II and III (judge’s salaries, etc.) And that’s it.
David, you can argue anything you want, but the plain language of Article I, Section 8 does not bear that out. As I noted earlier, the tax and spend power is itself an enumerated power, part of the same litany that includes the military, the patent office, etc. It makes no more sense to say the tax and spend power must be in connection with other enumerated powers than it does to make any other enumerated power dependent on another, e.g., to argue that Congress can only regulate interstate commerce for purposes of creating patents.
As an aside, it’s worth noting that Eastman’s argument, if accepted, is an argument against any form of federal disaster relief. It provides no basis for our host’s apparent view that our existing federal relief laws are A-O-K under the Constitution, but will suddenly “go to the dogs” if the PETS Act is passed. That (allegedly) constitutional train left the station a long time ago.
The comment that “only because ‘anyone but a lawyer’ is more likely than the average lawyer to have a naively idealistic conception of what the Framers’ actual intentions were” is arrogant, ironic and wrong.
The “general welfare” language in US Const. Art. I, sec. 8, relates to the legislative spending power. It is well settled that Congress may spend public funds, or withhold public funds as an inducement toward certain behavior. See, e.g. Helvering v. Davis (1937).
The “general welfare” language in Art. I, sec. 8 does not authorize Congress to require or forbid any sort of conduct it chooses in terms not linked to the spending power. The silly proposed legislation under debate, decreeing that steps be taken to care for pets in the event of natural disasters, finds no constitutional support in the “general welfare” language of Art. I, sec. 8.
Sure, Jake, it’s arrogant of us lawyers to assume that law school and practice taught us anything about the law that the average joe on Street Smarts doesn’t also know. And how does your arrogant dentist get off thinking he knows anything about your teeth that you don’t? They’re your teeth, dammit. I must say, though, without exception, every nonlawyer who’s ever made that “how dare you arrogantly suggest lawyers know something about the law” argument has followed his protest with a frivolous legal argument to prove that my “arrogance” was justified.
Your frivolous argument didn’t disappoint, although in your case the problem had more to do with reasoning skills, or lack thereof, than with the usual problem of getting the substantive law wrong. You started by getting the law right, quoting Helvering v. Davis, and then proceeded to argue as if it said exactly the opposite. On what planet does “it is well settled that Congress may spend public funds, or withhold public funds as an inducement toward certain behavior” translate into “it is well settled that Congress may not spend or withhold public funds as an inducement toward behavior that some guy named Jake (who hasn’t been born yet but we’re pretty sure he will be, a couple centuries from now) thinks is silly?”
Rather than setting up a strawman for the sake of knocking it down, Xrlq, why not read closely the argument to which you respond? All I assert is that a federal legislative command regarding the care and feeding of pets, not linked to the tax and spend power under the “general welfare” clause, must emanate from elsewhere in Art. I, sec. 8. You name no other source, Xrlq. How about the Commerce Clause, the general all-purpose source of legislative mischief?
Here is a helpful link from Findlaw detailing the extent of the controversy we on the right side of the issue are arguing with Xlrq.
http://caselaw.lp.findlaw.com/data/constitution/article01/26.html#2
As you can see, it split Hamilton and Madison. Chances it’ll be resolved today are slim.
X,
Your bloviations have indeed shown us that lawyers do receive an education that most of us don’t have (or want); the primary lesson that you’ve learned is that the letter, not the spirit, of the law is what counts, and as long as you’re quickwitted and well spoken enough to convince someone else to see your side of the argument, the law means, quite literally, nothing.
Perhaps you see that as a good thing. Most of us have the sense to see it as shameful.
Jake, how am I building a strawman? You’re the one who correctly outlined the broad scope of the tax and spend power, only to conclude it does not apply to this particular federal expenditure because … it was silly. Your words, not mine.
Now, you’ve wandered even further out into left field by claiming that this particular federal expenditure (or, more precisely, one particular condition that must be met to receive it) is magically “not linked to the tax and spend power.” How on earth does that work? Do you think taxes and expenditures you like are linked to the tax and spend power, but taxes and expenditures you don’t like are not? If not, kindly explain how this particular federal expenditure is distinguishable from the rest.
Matthew, you don’t know what you are talking about. I’m not arguing letter vs. spirit; I’m arguing letter and spirit. However the spirit of the law as written is one thing, and the spirit of what you (or, for that matter, I) might like it to be is another. Personally, I’m not a big fan of the federal government bribing the states to set DUI limits, drinking ages, speed limits, whatever; I just don’t kid myself into thinking such laws are unconstitutional.
Xlrq,
Your arrogance is indeed impressive.
“Only because “anyone but a lawyer” is more likely than the average lawyer to have a naively idealistic conception of what the Framers’ actual intentions were.”
No, I have an ability to READ the Consitution unfettered by 200 years of jurisprudence and several years of law professors telling me its clear language means something other than what it says.
The arrogance people despise (yes DESPISE) in lawyers is not their knowledge of legal minutia – indeed, that is why we are often forced to hire you. It is the constant background and underlying contempt that you hold for us, the unwashed masses. Why, we apparently can’t even READ.
The Consitution is a VERY easily read document, even giving it 200+ years to age. There are a few finer points where disagreement on intent is likely and reasonable, but this is not one of them. I point you at the recent Kelo decision as an example of “only a lawyer”.
I assure you that *I* made no “frivolous legal argument” to support what I said – indeed, I made no LEGAL argument at all! It is a moral and ethical argument, which quite clearly (to the rest of humanity) is much, much superior to law. Indeed, this country came about through such – by BREAKING the unjust laws that bound it (or such was the argument of the men who founded this country).
I am quite sure you can easily and thoroughly defeat me in any court in the land. Your skills in the court room or with the leegal document are not being challenged in the slightest (at least, not by me). That is entirely and completely beside the point.
THAT is what “only a lawyer” means.
What’s that famous quote? I want to say it was Mark Twain, but that might not be right (I’m not anywhere I can look this stuff up, so I’m shooting from the hip – my apologies, but I’m fairly certain that you’ll recognize it, even if I butcher it):
“Some ideas are so stupid, only an academic could believe them.”
It’s the same thing. It’s like the classic argument between doctors and chiropractors – each sees problems with such tunnel vision that they cannot acknowledge that the other might be right on any particular point.
And that is your problem, as well – tunnel vision. Sure, the case law is “settled”, and the precedents support you. But they are all quite clarly wrong to anyone who bothers to read and understand the document they are supposedly based on.
“As an aside, it’s worth noting that Eastman’s argument, if accepted, is an argument against any form of federal disaster relief.” Quite right. But as you’ve painfully pointed out, that train (and so many, many others) left the station long ago, leaving a huge mess for those of us around today.
Deoxy:
Neato. The next step is to try actually using that ability. You are the one, not me, who is trying to give a common English phrase (“for the general welfare”) a meaning its words will not bear (“only if some other part of the Constitution says they get to do it already”).
But if you really think most nonlawyers agree with you, by all means, go ask 100 random non-lawyers how many of them think the PETS Act violates any part of the Constitution. Damned near none, I suspect, though not necessarily for the right reason. The average nonlawyer doesn’t think in terms of enumerated powers. The average lawyer does, but also knows that the tax and spend power is one of those enumerated powers. The only group likely to agree with you is a small number of self-styled “constitutionalists” who have little or no formal knowledge of the Constitution, but have convinced themselves they know all there is to know. Oh yeah, that makes other people arrogant, not them. Right.
I’m no fan of the Kelo decision. That decision is indeed the type “only a lawyer could love,” but for reasons having nothing to do with the topic of this discussion. In fact, the worst thing about the Kelo decision is that it does to the takings clause what you all are trying to do to the tax and spend clause: find a clearly-worded constitutional provision you disagree with, then rationalize that it doesn’t really mean what it clearly says.
Sure you did. If you had merely argued that the tax and spend clause gives Congress more power than Congress ought to have, I wouldn’t have argued the point; in fact, I would have agreed with it. Where your argument stopped being a reasonable opinion and started being a frivolous quasi-legal argument is when you claimed, citing no evidence whatsoever, that a common-sense reading of the phrase “for the general welfare” violates the intent of the framers. It certainly doesn’t violate Hamilton’s intent. Madison’s, maybe, but he drafted the damned thing, so if it’s applied too broadly for his own tastes he has no one but himself to blame.
Oh please. There are practical, historical and geopolitical arguments to be made for and against a federalist system vs. a strong central government, but morality is not among them. It’s not as though the Eleventh Commandment read “Thou shalt not allow thy federal government to usurp the roles of the states.”