Thomas, J., dissenting
source of a general congressional spending power because “it fails to provide any authority at all to spend money acquired otherwise than by taxation.” Ibid. Yet, “[t]he federal treasury receives money from many other sources, including penalties, fines, user fees, leases, surplus property sales, gifts, bequests, and returns on investments.” Ibid. And those sums are a pittance in comparison to those raised under Congress’ Borrowing Clause power, see Art. I., §8, cl. 2, which has always been one of the major sources of federal funds. Unless federal spending on credit and from revenues not derived from “Taxes, Duties, Imposts and Excises” is unconstitutional, the General Welfare Clause cannot be the source of Congress’ spending power.
The Clause certainly is not an independent grant of regulatory power to legislate for the general welfare, as the history of the Constitution’s framing and ratification makes clear. The Philadelphia Convention initially adopted a resolution that Congress be authorized “ ‘to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.’ ” J. Renz, What Spending Clause? (Or the President’s Paramour), 33 John Marshall L. Rev. 81, 104 (1999) (Renz). But the Convention later abandoned this vesting of a broad power to legislate for the general welfare in favor of the enumeration of specific federal legislative powers and the creation of a taxing power limited by the General Welfare Clause. See R. Natelson, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 Kan. L. Rev. 1, 23–29 (2003) (Natelson); see also Renz 104–105 (counting five instances in which the Convention considered and rejected attempts “to insert a grant of general legislative power into the Constitution”).[1]
- ↑ One instance in particular demonstrates that the General Welfare
