Guest Submission by: By Zbigniew Mazurak
Too often, federal policy disputes are waged only on pragmatic grounds, i.e. the opposing sides too often debate only about whether the proposed program or legislation is practically good for the country or not. Whether it is constitutional or not is seldom considered. The Congress and the Executive Branch, whichever party controls them, often implement various policies and don’t even consider whether the Constitution authorizes them or not.
This is usually the case when they consider budgetary decisions, legislation on issues of all kinds (including gun bans and bailouts), and other policies.
Omitting the constitutionality question allows liberals to set the terms of the debate, specifically, to ensure that the program/agency/policy is continued if a majority of Americans believe it makes sense and deserves federal funding.
But the question "Is this Constitutional?” should actually be the first question asked, because the Constitution is the Supreme Law of the Land.
And if the federal government is reduced and reined in line with the limits imposed by the Constitution, the government will be small, will stop interfering with issues it shouldn’t tinker with, the federal budget will be balanced, and most of America’s social problems will be solved, because most of them have resulted from federal interventionist policies. In fact, there are practical and constitutional arguments against every liberal domestic policy.
So what is the proper role of the federal government?
The Constitution’s Preamble says the federal government was established (and the Constitution was adopted) to “form a more perfect union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
The Constitution’s articles, and the subsequent Amendments, specify the prerogatives of the Feds. They are listed in Article I, Sec. 8; Articles II-V; Amendments XIII-XVI, XIX-XX, XXIII-XXVI. These prerogatives belong to one of the following categories:
1) Defense, war prosecution, peace, foreign relations, foreign commerce, and interstate commerce;
2) The protection of citizens’ constitutional rights (e.g the right to vote) and ensuring that slavery remains illegal;
3) Establishing federal courts inferior to the SCOTUS;
4) Copyright protection;
5) Coining money;
6) Establishing post offices and post roads;
7) Establishing a national set of universal weights and measures;
8 ) Taxation needed to raise revenue to perform these essential functions.
Those are the only prerogatives of the Feds. The Tenth Amendment states that all prerogatives not explicitly given to the Federal Government, nor prohibited of the states, are reserved to the states or to the people (i.e. individual Americans). So the Feds are not allowed to handle any issues not explicitly listed in the Constitution; their prerogatives are limited to what the Constitution explicitly states.
James Madison, the principal original author of that document’s original text who also wrote the first 10 Amendments, wrote in the Federalist Papers that “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
– Federalist Paper #45, paragraph #9.
The Constitution clearly says that the Feds’ role is only to provide for the common defense, manage foreign relations, protect citizens’ constitutional rights, establish federal courts; apply and explain federal law (in the judiciary’s case); and a few other minor issues. No branch of the Federal Government is authorized to handle any other issues. So the federal establishment should be strictly limited to these tasks; all others should be reassigned to the states, local governments, and individual Americans.
Of course, the Congress should adequate finance the few agencies that perform constitutional tasks, while auditing and supervising them, and ensuring that their budgets are well spent. Indeed, the federal government even has a few constitutional obligations, such as defense.
But these functions and agencies are few, and are limited by the Constitution. The federal government already raises enough revenue every year to finance them. FY2010 federal tax revenue was sufficient to finance the Pentagon, the State Department, the USPS, the ITC, and the few other federal agencies authorized by the Constitution, but it wasn’t enough to finance an intrusive federal establishment that tinkers with the environment, oil corporations, schools, hospitals, railroads, subways, and highways.
Nor can the Congress legally delegate its prerogatives to someone else, as per the nondelegation doctrine. Hence, the Fed is unconstitutional and should be abolished.
Ronald Reagan said during his First Inaugural Address: “We are a nation that has a government, not the other way around. Our government has no power except that granted by the people, and this makes us special among the nations of the Earth.” Indeed!
In 1794, when the Congress considered whether to appropriate $15,000 (a paltry amount even if adjusted for inflation) to French refugees (fleeing a Jacobin-governed country where innocent people were being slaughtered), Congressman James Madison, the author of the Constitution and the first 10 Amendments, voted against that appropriation, saying that he “could not undertake to lay [his] finger on that article in the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents. And if they once broke the line laid down before them, for the direction of their conduct, it was impossible to say to what lengths they might go, or to what extremities this practice might be carried.”
The federal government has continued this trend to troubling extremities, indeed. And it has a big annual budget deficit exactly because it has grown inexorably, meddling with affairs not assigned to it by the Constitution.
Nowadays, it maintains 15 Cabinet departments, 2,001 subsidy programs, thousands of pages of federal regulations on the Federal Register, a job-killing EPA, highways that states don’t even want, and government-owned enterprises. It regulates everything, from fuel production rates, to the financial industry, to the oil industry, to minimum wages. It has bailed out many corporations and distributes hundreds of billions of dollars of pork programs (including those 2,001 subsidy programs) every year.
It should therefore be significantly reduced – in line with the Constitution. All unconstitutional agencies and programs, however popular or however many people they serve, should be abolished, while constitutional agencies should be preserved (but also reviewed and reformed).
It is time for Republicans, the conservative media, and conservative lawyers to say this loudly. And it is time for Congressional Republicans to start trying to implement such policies, regardless of what the GOP establishment tells them.