Is Welfare Constitutional? (Part III)

Most everyone agrees that money is property. In his dissent in Citizens United Justice Stevens said “Money is property, not free speech.” (I believe money is both property and speech since what we buy expresses who we are. In Johnson v. Texas the Court decided that burning the U.S. flag was constitutional. In this case, Johnson was burning his own property to express a message). Hence, taking money from a private company or citizen to distribute to another private citizen or company would violate the Fifth Amendment. Of course the Sixteenth Amendment throws a wrinkle into the equation since it gives Congress the authority to take taxes (income taxes). But the Sixteenth Amendment says nothing about how tax money should be spent, so does it trump the specifics of the Fifth Amendment? I do not think so. I think the Sixteenth Amendment allows the federal government to take property (income tax) without just compensation. However, it can only use that tax money for public reasons such as military, roads, parks, TSA, public salaries, and so forth. Therefore, wealth cannot be distributed for private reasons. However, there have been a few Supreme Court decisions: Berman v. Parker (1954), Hawaii Housing Authority v. Midkiff (1984) and Kelo v. City of New London (2005) where the Court held that private takings for public purposes can be justified if there is a benefit to the community such as increased tax revenue or more jobs. Of course this reasoning makes just about any takings for private reasons Constitutional! After all, what is stopping the government from taking your home and your neighbor’s homes so a company can build a plant to increase jobs and tax revenue? Nothing! But this is liberal hypocrisy at its best because this action is the opposite of welfare. In many Taking Clause cases, the Court is taking from poorer people and mom and pop shops to give it to wealthier persons and companies.

In NFIB v. Sibelius (2012) the Court held that ObamaCare was Constitutional. The decision was mixed. The Court said that the mandate portion of the bill was Constitution via the spending or tax power of Congress not via the Necessary and Proper Clause or the Commerce Clause. The Court also held that Congress could not use coercive tactics to force States to implement the law. In other words, Congress could not withhold tax revenue for State Medicaid programs unless States implement ObamaCare. The Court said it was not their duty to say whether ObamaCare was a good law but instead to rule on its Constitutionality. What does all this mean? It means Congress has tremendous taxing or spending power. What can’t Congress force people to purchase and call it a tax? Nothing! It also means that Congress can probably generate any welfare program under the guise of a tax but not under the Commerce or Necessary and Proper Clauses. I would still dispute whether tax takings from private citizens and corporations can be redistributed to other private citizens and corporations. Would welfare programs increase tax revenue and jobs to justify a private takings for private reasons? Of course not! People on welfare do not have to get a job and they can stay on welfare their entire lives and this does nothing to improve tax revenues. In fact, taking more money from job creators and revenue producers will do the opposite, it will decrease jobs and revenues for local communities. I would also dispute if States do not have to set up ObamaCare, since the Federal government lost it coercive powers, then does Congress have the power to implement any welfare program? I do not think so.

ObamaCare is also a discriminatory law (like Social Security) because it fails to treat all persons within the program the same. For instance, union employees get special benefits and it only targets a small portion of the population. Discriminatory laws certainly do no help the “general” welfare. In summary, there is nothing in the Constitution that justifies welfare, in fact the Fifth Amendment says it is unconstitutional. However, bad precedent for Social Security, ObamaCare, and Takings cases have made Welfare (bad) law (as Justice Roberts said NFIB, it does not have to be good law).