DICTUM
n, Latin for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis of judgement. The standard counter argument is: "It is only dictum (or dicta)".
IN OTHER WORDS (THE FOX IS IN THE HEN HOUSE) ... THERE'S NOTHING STOPPING CONGRESS FROM ELIMINATING OR MODIFYING THE LAW OR THE IMPOSED TAX; THEREFORE CHOKING THE LIFE OUT OF THE OBJECT OF THE DICTUM. NOW THE SHOE MAY FIT, BUT THE FACT IS THAT YOU'RE NOT GOING TO COMPLETE THE MARATHON.
HOWEVER, THERE IS A DOWNSIDE TO THE AHCA ... THE VOTERS AND NATION SHOULD BE REMINDED OF JUST HOW OUR ELECTED OFFICIALS ENACTED THIS HEALTH CARE OVERHAUL. IT WAS ENACTED WITH LEGISLATIVE BRIBES, USING ARCANE CONGRESSIONAL RULES, AND WITHOUT A SHRED OF BIPARTISANSHIP. HOW THE AMERICAN PEOPLE WALKED INTO THE LARGEST TAX HIKE IN HISTORY WITH THEIR EYES WIDE SHUT SPEAKS VOLUMES TO THE FACT 'THEY' ARE THE MOST IGNORANT ELECTORATE IN THE FREE WORLD.
Article I, Section 8, Clause 1 of the United States Constitution, is known as the Taxing and Spending Clause.[1] It is the clause that gives the federal government of the United States its power of taxation. Component parts of this clause are known as the General Welfare Clause[2] and the Uniformity Clause.
The United States Constitution contains two references to "the General Welfare", one occurring in the Preamble and the other in the Taxing and Spending Clause. It is only the latter that is referred to as the "General Welfare Clause" of this document. These clauses in the U.S. Constitution are exceptions to the typical use of a general welfare clause, and are not considered grants of a general legislative power to the federal government[2] as the U.S. Supreme Court has held:
- the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments";[3][4] and,
- prior to 1936, the General Welfare Clause was not considered an independent grant of power, but instead a qualification on the taxing power which included within it a power to spend tax revenues in the interest of the general welfare.[5][6] In recent decades, the Court conferred upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion, including the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds.[7]
Thomas Jefferson explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”[8]
In 1824 Chief Justice John Marshall described in obiter dictum a further limit on the General Welfare Clause in Gibbons v. Ogden: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."[9]
The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."
The two primary authors of the The Federalist essays set forth two separate, conflicting interpretations:
- James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.[10][11] It should be noted that the requisite threshold of nine states for ratification of the constitution had already been met by the time Virginia ratified[12], and eight states had already ratified before the specific paper in which Madison made this argument [13] was published in bound form [14][15]. Before this time, they had only been published irregularly outside of New York[16], which itself ratified after Virgina. While the Federalist papers are considered an important contemporary account of the views and intentions of the founders[17], they are widely considered to have had little effect on the actual passage of the constitution.[18][19][20][dubious ]
- Alexander Hamilton, only after the Constitution had been ratified,[21] argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.[22]
While Hamilton's view prevailed during the administrations of Presidents Washington and Adams, historians argue that his view of the General Welfare Clause was repudiated in the election of 1800, and helped establish the primacy of the Democratic-Republican Party for the subsequent 24 years.[23]
Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co.,[24] in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause. This narrow view was later overturned in United States v. Butler. There, the Court agreed with Associate Justice Joseph Story's construction in Story's 1833 Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.
Shortly after Butler, in Helvering v. Davis,[25] the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole.[7] To date, the Hamiltonian view of the General Welfare Clause predominates in case law.
THIS ISSUE ISN'T OVER YET ... NOT BY A LONG SHOT!
THIS ISSUE ISN'T OVER YET ... NOT BY A LONG SHOT!
