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Randy Barnett and David Oedel have an article in the Wall Street Journal (subscription, but can circumvent though Google) arguing for a rather radical limit on Congressional spending.  According to Barnett and Oedel, a particular item of federal spending must benefit the "welfare of the people of each and every state" in order to count as providing for the General Welfare of the United States.  So an earmark specific to Nebraska that relieved the state of Medicaid expenses would be unconstitutional.  Although this is not my area, and many people have been recently burned by underestimating Randy's arguments about limits on Congressional power, color me skeptical on the argument.

First, it is not clear why Barnett and Oedel require parity between states but not individuals.  After all, why not say that General Welfare means each and every person, rather than each and every state?  Where the constitution required parity between each and every state, such as for direct taxes, the provision was made expressly.  Of course, to require every particular item of federal spending benefit every person in the United States would lead to obviously ridiculous results, but that doesn't make drawing the line at state-by-state parity any better.

This leds to my more serious objection, which is that particular items of federal spending will always benefit specific states.  Barnett and Oedel argue that a military base in Nebraska will benefit the entire nation.  But it is hard to imagine how, say, a single janitor sweeping the hall in a federal building in Hawaii will benefit North Dakota.  And if we start really stretching logic to find some benefit -- e.g. cleaner hallways in Hawaii will improve the overall efficiency of the federal government -- then that defeats Barnett and Oedel's entire purpose.  After all, paying for the medical care of Nebraska residents will obviously benefit the rest of the United States, since it will stimulate economic activity as well as improve the health of Nebraska residents, which will reduce communicable diseases that they might carry to other states, which again will make everyone healthier and improve economic welfare.  The point is only that the benefit is somewhat attenuated.  But by conceding the military base example -- which of course they had to as a bow to reality -- they necessarily concede some degree of attenuation is persmissible.

Finally, it strikes me that Barnett and Oedel base their argument on a textual mistake.  The relevant provision of the constitution is not directed to particular items of spending.  It is directed to particular items of tax.  The constitution authorizes the levying of taxes to provide for the general welfare -- it only implicitly says those taxes may then be spent.  The level of generality is therefore not the particular items of federal spending, but the particular tax being levied.  And the relevant tax -- the income tax -- does provide for the general welfare.  It does so by being carved up into millions or billions of different pieces of spending.  Some of those pieces of spending will benefit individual people or states; but the overall scheme gives some benefit to everybody.  And it is inherent in the scheme that some people (and some states) will get more than they put in, while others less.

While everyone should be troubled by particular states or constituencies getting disporportionate shares of the pie because they happen to be in a good political position (having the swing senator), it bears repeating that not every bad law is an unconstitutional law.

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