With the new surge of federal overreach related to COVID-19, I thought it would be good to put a couple of things on the record here for my readers’ convenience. This is a very simple post, showing two excerpts from the US Constitution. And at the end is a brief explanation of the most common cheat in constitutional law.
THE POWER TO MAKE LAWS
First of all, we should note that the Constitution does not allow the Supreme Court or the President to make laws. No, that power is given only to the Congress. Among other things, this means that Executive Orders and directives of the President are illegal, except where he is ordering the business of his own federal departments (over which he has rightful executive authority).
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
In short, this means that there are no legislative (law-making) powers granted by this Constitution to any person or institution but the Congress.
THE KINDS OF LAWS THE CONGRESS MAY MAKE
Some think that the Constitution gives Congress practically-unlimited powers to do whatever they please, but this is not true. Congress’ powers are limited, and they are listed in Article I, Section 8 of the Constitution. Study this list thoroughly and ask yourself whether they have the power to give away “stimulus” or “bailout” checks, or to suspend the freedom of assembly, or of travel–or to authorize anyone else (such as the President) to do such things in their stead.
Article 1 – The Legislative Branch
Section 8 – Powers of Congress
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Many will try to cheat by way of that that first enumerated power (emphasis added):
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;Article I, Section 8, Paragraph 1
They will argue that anything, then, that is good for the “general welfare” of the United States is allowable. This cannot, however, have been the intent of the Framers in using this phrase. If it had been, none of the other items in this list of powers would have been necessary to write. It simply does not, and cannot, mean that Congress is authorized to pass any law they like.
Further, if you watch the kinds of acts of Congress for which this “general welfare” reasoning is used as “justification”, you’ll see that in most cases, they do not promote the “general” welfare of the Union, but the specific welfare of certain factions or localities. Putting in a bridge in Alabama, for example, does nothing to help the welfare of Wyoming. Or providing support to New York City does nothing to help the people of Red Boiling Springs, Tennessee. Even so, this “general welfare” notion is frequently employed to justify unconstitutional acts of Congress.