[NOISE] I was just talking about how five of the justices would have found the individual mandate of the Affordable Care Act unconstitutional, as exceeding the scope of Congress's power. In fact, four of the justices, Justices Scalia, Kennedy, Thomas, and Alito would have declared the entire Patient Protection Affordable Care Act, all 2,700 pages of it, to be unconstitutional. But as you know, that's not what the Supreme Court did. Rather, in National Federation of Independent Business versus Sebelius, the Supreme Court upheld the individual mandate. The court did so by saying that it was a constitutional exercise of Congress's power under the taxing and spending power. And that's the second of the powers that I want to talk about. Congress's power to tax and spend. Like the Commerce power this is one of the most important authorities that Congress possesses under the Constitution. In fact the Supreme Court has said that Congress under Article 1 Section 8 of the Constitution has broad authority to tax and spend using the words of the Constitution. For the general welfare. What this means is, that congress, can adopt any tax to raise revenue. And congress can adopt any spending program, to expend the money, that congress believes will serve the general welfare. And Congress is given broad latitude in deciding what will serve the general welfare. In fact, never in all of American history has a tax been declared unconstitutional on the grounds that it doesn't serve the general welfare. Never has a spending program been declared unconstitutional on the grounds that it doesn't serve the general welfare. This is left very much to the discretion, to the latitude of Congress. This is reflected in a decision from 1936, a case called United States versus Butler. It involves a New Deal law, the Agricultural Adjustment Act. The Agricultural Adjustment Act would pay farmers not to grow crops. Now initially that seems counterintuitive. Why would the United States government pay farmers not to grow crops? Well the concern was price stability, if too much of a crop was on the market it would depress prices, then farmers wouldn't have an incentive to continue to grow the crop, so price support subsidies were created to give farmers enough of an incentive to keep the supply low to raise prices so be incentive to grow in the future. Remember this was a time in which the Supreme Court was very conservative, when it was repeatedly striking down new deal programs. And the question came to the supreme court is to what is the scope of Congress's power to tax and to spend? And from the earliest days in American history, there was a dispute over this. And the dispute involved none other than James Madison and Alexander Hamilton. If there's any who we regard as the framers of the constitution, it's James Madison and Alexander Hamilton. They were the two primary authors of the Federalist Papers. The Federalist Papers were a series of newspaper articles, editorials written to urge New York to ratify the constitution. We now often look to the Federalist papers to try to understand what was the original intent of the drafters. Well James Madison said that he believed that Congress had the power to tax and spend only to carry out one of the other enumerated powers in the Constitution. So, for example, Congress could tax and spend money to raise an army and a navy, because that's a power enumerated in the Constitution. For Madison, Congress could tax and spend to create roads or post offices. because those are powers that are enumerated in the constitution. But other than that, Congress could not tax and spend just by saying it would serve the general welfare. He said Congress is limited to the powers herein granted. Congress is meant to be a body with restricted authority. None other than Alexander Hamilton took the opposite perspective. He said congress is meant to have the authority to tax and to spend for any purpose so long as Congress believes it will serve the general welfare, Congress should be able to do this. Think in practical terms, why this disagreement matters so much. Can Congress for example give disaster relief? After there's a hurricane like Katrina, or terrible flooding, or horrible fires. Can Congress then appropriate money for disaster relief? If you take the Madison perspective, the answer would be no. Congress can only tax and spend to carry out the specific powers enumerated in the Constitution. But if you take the Hamilton perspective, then Congress has broad authority to tax and spend. Under the Hamilton perspective, Congress can tax and spend for any purpose it wants. Now one would have thought, in 1936, that the conservative Supreme Court would have adopted the Madison perspective. It didn't though. In United States versus Butler, the Supreme Court cited to both Madison and Hamilton and came down squarely on the side of Hamilton. That Congress can tax and spend for any purpose and this has been the law ever since. Indeed this has been the law throughout American history. So when you look at the size of the federal budget, when you consider the huge number of programs of all sorts that have been adopted, it is the Hamilton perspective that's responsible. Not long after United States versus Butler the issue came to the Supreme Court is whether Congress could create the Social Security tax and the federal social security program all of us have to pay a tax on wages that goes to support the social security program. And of course when we reach retirement age we're all entitled to receive social security benefits regardless of our economic need. It's an insurance program. Did Congress have the authority to adopt this tax, the spending program? The supreme court said clearly yes because congress can adopt any tax, any spending program that it believes will serve the general welfare. Congress obviously thought that the social security system would do so. Had the Madison perspective prevailed. Social security would be unconstitutional. Something that seems unthinkable to us today but it's this broad perspective of Congress's power to tax and spend that's responsible for this. This perspective is continued to this day and of course it explains then why the individual mandate in the Affordable Care Act is constitutional. In national federation of independent business versus Sebelius, Chief Justice Roberts wrote the opinion through his joined by justices, Ginsburg, Breyer, Souter and Kagan. Chief Justice Roberts says the individual mandate in the Affordable Care Act operates as a tax. Subject to narrow exceptions, everyone had to purchase health insurance by 2014. Anyone who didn't do so would have to pay a tax penalty, it was about 95 dollars in the first year, about 300 dollars in the second year. Said all we had to pay tax penalties, we'd have the revenue go to the Internal Revenue Service just like all other taxes. It's estimated by 2016 this would give the federal government about four billion dollars a year in additional tax revenues. He says this looks like a tax, it acts like a tax, it is a tax within the meaning of Congress's taxing power. Says congress can tax for the general welfare. No tax that declared unconstitutional on this basis ever in American history. So this is constitutional. The four dissenting justices said but Congress never called this a tax. In fact President Obama was careful in proposing the Affordable Care Act to never refer to it as a tax and therefore they say it can't be treated as a tax. And obviously the president and Congress didn't want to make it sound like what they were doing was a tax. So they never used that nasty three letter word. But the Supreme Court said labels don't matter. Because it is a tax. And it's within so the scope of congress's power regardless of what it is called. No federal statute has been more controversial in recent years than the Patient Protection Affordable Care Act. It's now estimated that an additional 17 million people have health insurance, who otherwise had been without. Because of the Patient Protection Affordable Care Act. What made it constitutional was the supreme court's view that Congress has broad powers to tax and spend for the general welfare. So I said that I wanted to cover three major sources of power for Congress. One is in the commerce clause, Congress authority to regulate commerce among the states, the second is the taxing and spending power. And third, I want to talk about Congress's powers under the post Civil War amendments. Under the 13th, 14th, and 15th Amendments. Which are significant expansions of the scope of Congress's authority.
