Last week, the Department of Education proposed paying millions of dollars in grants to programs that teach that the fabric of American society is racist. This prioritization seems off-base for a grant program intended to inspire patriotism, civic engagement, and increase understanding of the principles underlying the Constitution. And it’s tough to tell a hardworking family that their tax dollars are being used to break down our national fabric, in a school district across the country. This should be our greater concern. How does the Federal Government have authority here in the first place, when the power to “teach the 1619 Project” is nowhere in the Constitution?
The executive and legislative branches are under the assumption, based on decades of getting away with it, that while they might not be able to make you teach critical race theory, they sure can take your money and offer it back to you only if you teach it. And under this type of assumption, the federal government can, through the backdoor, regulate not only education, but local healthcare programs, welfare programs, housing policies, police practices, and more.
Doesn’t this offend the idea of a limited, constitution-based government? Depends on who you ask. Yes, the Constitution generally lays out what the Federal Government may regulate—coining money, establishing post offices, creating federal courts, and protecting patents, for example. But we’ve completely blown past that list, in large part due to the “Spending Clause.” Congress, under the Spending Clause to the Constitution, has authority to “lay and collect Taxes,” and then to spend that money to pay for “the general Welfare of the United States.” During the early days of our republic, two schools of thought competed for the better interpretation of this clause. James Madison argued that the “general Welfare” was described in the Constitution, and Congress could spend money pursuing only those things written in its text. Alexander Hamilton argued the opposite, that anything affecting the nation broadly was “general” welfare. The latter view has won.
When Congress didn’t take in or spend too much of your money, the idea of the federal government spending on things outside its normal wheelhouse might be bearable. My how the times have changed.
Before COVID-19, the federal government “paid” (that is, taxed and gave back to the states) about a third of states’ total spending. And that percentage is about to seem remarkably low. Funds appropriated during the pandemic provided another $350 billion, under the CARES Act, and $362 billion, under the Rescue Plan Act, not to mention the countless other COVID-19 grants to state education systems, hospitals, and so on. Not only does the federal government plan to spend more than $4 trillion annually on its regular budget, but the proposed infrastructure plan spends an extra $2 trillion, and the proposed families plan an extra $1.8 trillion.
So long as the federal government spends like this, the States will be unable to tax and spend on their own priorities. If the Feds are taking all your money, the states cannot also take all your money. This blow-out in spending will not only create major debt issues for the nation, but it hands every area of local control to the federal government. Who cares if Congress can’t directly tell Kansas it must replace its math classes with systemic racism classes when Congress can take Kansans’ money, and give it back to them only for the latter.
We cannot count on this trend ending by politician restraint alone. Voters do not seem to rally around candidates who want to, well, do less. That leaves the law. The courts should acknowledge that the Spending Power is a new beast today, and impose a more demanding test. While the best solution might be to bring back Madison’s reading, as it’s likely the only test consistent with a constitutional democracy, even a closer reading of Hamilton may help us. A family in Arizona is in no way benefitted by a critical race theory book reading in New Hampshire. Without clear, nationwide benefit—like the Hoover Dam or the interstate system—the courts should be skeptical that Congress can act. If Congress knows someone is watching, they’ll be much more likely to consider whether their spending programs benefit the nation, or are merely a wish list.