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August 12, 2011 12:40 PM Enumerated powers

By Steve Benen

Republican presidential hopeful Rick Perry was asked last year about his understanding of “general welfare” under the Constitution. The left, the Texas governor was told, would defend Social Security and Medicare as constitutional under this clause, and asked Perry to explain his own approach. He replied:

“I don’t think our founding fathers, when they were putting the term ‘general welfare’ in there, were thinking about a federally operated program of pensions nor a federally operated program of health care. What they clearly said was that those were issues that the states need to address. Not the federal government. I stand very clear on that. From my perspective, the states could substantially better operate those programs if that’s what those states decided to do.”

It’s worth pausing to appreciate the radicalism of this position. When congressional Republicans, for example, push to end Medicare and replace it with a privatized voucher scheme, they make a fiscal argument — the GOP prefers to push the costs away from the government and onto individuals and families as a way of reducing the deficit.

But Perry is arguing programs like Medicare and Social Security aren’t just too expensive; he’s also saying they shouldn’t exist in the first place because he perceives them as unconstitutional. Indeed, when pressed on what “general welfare” might include if Medicare and Social Security don’t make the cut, the Texas governor literally didn’t say a word.

Now, this far-right extremism may not come as too big a surprise to those familiar with Perry’s worldview. He’s rather obsessed with the 10th Amendment — unless we’re talking about gays or abortion — and George Will recently touted him as a “10th Amendment conservative.” Perry’s radicalism is largely expected.

It’s worth noting, then, that Mitt Romney seems to be in a similar boat. He was asked in last night’s debate about his hard-to-describe approach to health care policy, and the extent to which his state-based law served as a model for the Affordable Care Act. Romney argued:

“There are some similarities between what we did in Massachusetts and what President Obama did, but there are some big differences. And one is, I believe in the 10th Amendment of the Constitution. And that says that powers not specifically granted to the federal government are reserved by the states and the people.”

What I’d really like to know is whether Romney means this, and if so, how much. Because if he’s serious about this interpretation of the law, and he intends to govern under the assumption that powers not specifically granted to the federal government are reserved by the states and the people, then a Romney administration would be every bit as radical as a Perry administration.

After all, the power to extend health care coverage to seniors obviously isn’t a power specifically granted to the federal government, so by Romney’s reasoning, like Perry’s, Medicare shouldn’t exist. Neither should Social Security, the Civil Rights Act, the Clean Air Act, student loans, FEMA, or many other benchmarks of modern American life.

And if Romney doesn’t believe this, and he’s comfortable with Medicare’s constitutionality, maybe he could explain why the federal government has the constitutional authority to bring health care coverage to a 65-year-old American, but not a 64-year-old American.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

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  • NHCt on August 12, 2011 12:50 PM:

    Shh, Steve. Don't harp on this stuff. Being a 10ther will help Perry in the primary, so long as no one makes a stink about it. If the establishment sees this for the political suicide it is, they'll abandon him in a second. But if you keep quiet, the other candidates will probably just let it slide. This is suicide for the general election. Lord, please let Perry win the nomination. Amen.

  • c u n d gulag on August 12, 2011 12:56 PM:

    Thanks Steve!

    With Little Boots Bush gone, and Sarah fading, I'm glad to hear some good old fashioned 'frontier gibberish' again.

    Never thought I'd miss it...

  • NovaCre on August 12, 2011 1:03 PM:

    Its nice to see 'conservatives' actually publicly talking about their desire to destroy the last 60 years of progress instead of using vague references to 'states rights' and so forth. Fortunately for the citizens of this country, the lack of any power granted by the 10th amendment is unquestioned in the history of constitutional law; the issue is settled and will not be reopened by any federal court. This whole argument ended with the civil war, but that won't stop the Right since facts and reality have a well known liberal bias.

  • DAY on August 12, 2011 1:11 PM:

    "From my perspective, the states could substantially better operate those programs if that’s what those states decided to do.”

    -IF THOSE STATES DECIDED TO DO!

    So, it is up to each state to provide a pension, medical care, etc- or not?

  • JB on August 12, 2011 1:11 PM:

    Without the Federal Government, people in Texas would not be able to drink their water or breath the air.

  • RepublicanPointOfView on August 12, 2011 1:12 PM:

    Our founding fathers would never...

    ...approve socialized health care or require mandates!

    http://killfile.newsvine.com/_news/2010/03/25/4067338-fun-fact-president-john-adams-signed-a-health-insurance-mandate-into-law-in-1798


    In July, 1798, Congress passed, and President John Adams signed into law "An Act for the Relief of Sick and Disabled Seamen," authorizing the creation of a marine hospital service, and mandating privately employed sailors to purchase healthcare insurance.

    This legislation also created America's first payroll tax, as a ship's owner was required to deduct 20 cents from each sailor's monthly pay and forward those receipts to the service, which in turn provided injured sailors hospital care. Failure to pay or account properly was discouraged by requiring a law violating owner or ship's captain to pay a 100 dollar fine.

    Egads... Our founding fathers were a bunch of socialist commies & probably Kenyans too.

  • Grumpy on August 12, 2011 1:13 PM:

    "...states could substantially better operate those programs if that’s what those states decided to do."

    That's just the thing: states decided not to operate health care programs -- not with universal coverage, anyway -- and it became a national disgrace. Congress acted because too many Americans were dying for lack of access to health care, just as Congress tried to act when too many Americans were dying for lack of access to not being lynched.

  • kindness on August 12, 2011 1:13 PM:

    C'mon....it doesn't matter which Republican were to attain the presidency. Every single one of them is beholden to the Koch extremists and will lead exactly like dubya did for 8 years. It doesn't matter what they say in interviews of on the campaign trail. Just look at the Governors in Wisconsin & Ohio as examples. They will say what ever they have to to get elected and then go on their merry way doing their masters work.

    I don't need to tell you who their masters are other than it isn't the citizens who vote for them.

  • Davis X. Machina on August 12, 2011 1:13 PM:

    CNN exit polls after the 2010 mid-terms; Over-65 voters, R +19

    It doesn't explain why it's constitutional to bring health care coverage to a 65-year-old American, but to not a 64-year-old American.

    But it sure as hell explains why it's constitutional to bring health care coverage to a 65-year-old American, but not the rest of us.

    The Holy Grail is to find some way -- in the original SS legislation, they excluded agricultural workers and domestics (blacks and Mexicans) -- to get these social provisions to apply only to white people.

    Then the GOP could stay in power forever.

  • Rick Perry on August 12, 2011 1:13 PM:

    What I really am into is 'general welfare' for the corporation and the rich ......... just wanted to clarify. Thanks.

  • Camus on August 12, 2011 1:14 PM:

    I don't really think that arguing about the actual words in the Constitution ever really solves a debate but notice how many times conservatives insist upon inserting the word "specifically" or "explicitly" into the 10th amendment. It isn't there. Beyond ignorance, I suppose this is an attempt to ignore the presence of the "necessary and proper"
    clause which has historically been used to expand federal powers. I'm in the camp that believes the 10th amendment is just a truism. That is, those powers not given to the federal government are left to someone else (states or the people). Fairly obvious and largely meaningless.

  • Keeping Track on August 12, 2011 1:14 PM:

    Great last sentence!

  • jpeckjr on August 12, 2011 1:19 PM:

    Which level of govt does what is an enduring quesiton and tenstion in American life.

    Whether building roads and canals ("internal improvements", they were called then, not "infrastructure") should be built by the states or by the nation / federal govt was one of the first controversies in our history. The national govt justified building roads that crossed as essential for maintaining the postal service, which was essential for interstate commerce. National roads could cross state lines. Canals, though, tended to be state or private ventures. The interstate highways were justified on national defense grounds -- better for moving armaments and soldiers -- so federal funds could be used.

    Over the years, we have found ways to promote state-federal cooperation and joint ventures. I think the founders put the vague term "general welfare" in the Constitution to give themselves and their posterity extraordinary flexibility as times and needs changed.

  • Grumpy on August 12, 2011 1:20 PM:

    Speaking of enumerated powers, now that the GOP has effectively abdicated the power to "lay and collect taxes," are there any other Article I, section 8 powers they would rather ignore?

    "To borrow money on the credit of the United States" -- that's gone.

    "To declare war" went out the window decades ago.

    What's next?

  • Countme In on August 12, 2011 1:21 PM:

    So what's stopping the States right now, or at any other time in the history of this joke of a Republic, from instituting pension and healthcare to their citizens.

    Would a New York pension be portable to say, God forbid, Confederate Texas?

    If you lived in 19 states during your working life, would you collect 19 small checks in retirement?

    Under Perry's position, natch, gay couples would be prohibited by Perry's overweening fascist vermin Federal government from collected their partners benefits in all 50 states.

  • square1 on August 12, 2011 1:25 PM:

    Being a 10ther will help Perry in the primary, so long as no one makes a stink about it...This is suicide for the general election.

    Can you explain what you think is so suicidal about being a "10ther"?

    Now, "conservatives" have often used "states rights" as a pretext for avoiding federal policies that they disapprove of. But there is nothing inherently wacky or unpopular about legitimately preferring more power to be conferred upon the states. In fact, right about now, I'd say that there are plenty of liberals who wouldn't mind a smaller federal government and more powerful state governments.

    If New Yorkers want gun control, abortion rights, a strong single-payer health insurance system, corporate regulation, and environmental protection and residents of Georgia don't want any of that, I'm at the point where I would prefer to pay more in state taxes, less in federal taxes, and allow Georgians to wallow in their reactionary misery.

  • r on August 12, 2011 1:41 PM:

    Big Guvment exists only to hate teh gays!

  • burritoboy on August 12, 2011 1:51 PM:

    Much evidence suggests that Framers meant general welfare to be quite expansive indeed.

    1. George Washington, John Adams and Thomas Jefferson wanted to establish a national public university.

    2. Hamilton started a research institute / weapons development facility when he was Sec. of the Treasury.

    3. John Adams and his son (JQ Adams) consistently argued that the national government was empowered to engage in a huge variety of infrastructure projects. Remember that JQ Adams was a prominent politician into the 1840s.

    4. Abraham Lincoln (who was JQ Adams' colleague in the US Congress) agreed with JQ Adams' positions.

    5. The US federal government has supported a veteran's retirement system and a veteran's health care system from the time of the Revolution (veteran's pensions were promised to soldiers during the actual revolution). After the Civil War, veterans constituted much of the male population, so a huge proportion of the healthcare delivered in the later half of the nineteenth century was actually done through a system of veteran's hospitals (federally funded, of course).

    6. Jefferson and Benjamin Rush supported the establishment of a national library (now the Library of Congress).

  • June on August 12, 2011 1:52 PM:

    Why are conservatives so monstrous... seemingly without a shred of human decency, compassion, kindness, tolerance, wisdom or understanding. Where do these monsters come from?

  • T2 on August 12, 2011 2:06 PM:

    June, they come from the house two doors down from you.

  • DRF on August 12, 2011 2:15 PM:

    It's a free country, and Perry is entitled to have and express his own opinion about what the 10th Amendment means, but the ship has sailed long, long ago on this, and it's absolutely shocking to me that a major political figure in this day and age would actually be advocated abolishing Social Security because it is, somehow, unconstitutional. The Supreme Court ultimately decides on the meaning of the Constitution, and they long ago found this to be well within the power of the Federal Government.

    So, where exactly does Perry go with this? Does he propose to somehow roll back 70 plus years of Constitutional jurisprudence (not to mention the 200 plus years of legislative precedent that others have already noted in their comments)?

    And Perry conflates the Constitutional issue with the practical/policy issue. Does he really believe that we would be better off with 50 different systems of retirement and health care benefits? Even to one not particularly versed in public policy issues, this seems a horrendously bad idea, filled with potential inequities, overlaps, redundancies and inefficiencies. And as several commenters have already noted, how could this possibly work with individuals who have lived and worked in multiple states and retired to yet another state? For benefits not tied to employment, such as Medicare, this would be an even worse disaster. If benefits were based on where one lived, then, of course, retirees would flock to the state with the best set of benefits (which would, in turn, either bankrupt that state or cause it to reduce the benefits it offers).

    It's obvious that, from a policy point of view, a national system of benefits is much better, so what is the basis on which Perry says that a state-based system would be better? There is none, of course. Perry fulfills the view of him as an intellectual lightweight.

  • MuddyLee on August 12, 2011 2:33 PM:

    Thanks for making it simple, Rick Perry. Those of us who think of ourselves as Americans can vote for a party and for candidates who are trying to keep America from becoming a crazy conservative nightmare. And let me suggest again that let's start the federal spending cuts in the places whose leaders think Obama and the Democrats are somehow "anti-American": Kentucky, Texas, South Carolina, Bachmann's district, Cantor's district, Ryan's district.

  • June on August 12, 2011 3:14 PM:

    T2, in my case, thank goodness, maybe not -- but I take your pithy point.

  • ohhenery on August 12, 2011 3:48 PM:

    Paraphrasing Rick Perry: Powers not enumerated shall be mine (and, of course, friends of mine) because I say so.

    Paraphrasing Mitt Romney: I say so, too. So, there.

    Rick Perry: Well, enumerate this.

    Mitt Romney: I've got your enumerator.

  • john sherman on August 12, 2011 4:00 PM:

    The Conservative Constitution seems not to have Article VI, section 2 (the Federal Supremacy Clause) which states: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

    The Civil War settled the issues of interposition and nullification bloodily, but firmly.

  • Conservative1 on August 12, 2011 4:07 PM:

    You have to wonder what Perry's extremist and reactionary views have to do with traditional conservatism. And the answer is: nothing.

  • biggerbox on August 12, 2011 4:23 PM:

    What country did these people grow up in? Because the one they are talking about bears no resemblance to the United States, though it seems to have a very similar wording in its Constitution.

  • Grumpy on August 12, 2011 4:49 PM:

    Careful, burritoboy. Abraham Lincoln was definitely not a Framer, and lumping JQ Adams will get you laughed at.

  • Kevin on August 12, 2011 5:00 PM:

    pretty consistent with Perry's race to the bottom mentality. I think his ultimate goal was to make life in Texas so shi**y that he could keep the Mexicans out, maybe even get them to go back on their own to get high paying jobs. If there wasn't oil in Texas, that state would be in a lot of trouble.

  • Texas Aggie on August 12, 2011 5:12 PM:

    Given our present Supreme Court, the fact that Medicare, SS, and all the rest have years of approval means absolutely nothing. I strongly suspect that they would negate the Civil Rights Act if someone brought it before them. So the argument that these efforts have decades of precedence is not a good argument.

    But I would really appreciate it if some of these 10thers were as concerned about the 9th amendment.

    "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

    This in essence means that people have rights that the state or federal governments cannot take away even if they aren't listed anywhere. In other words, the only way a government of any kind can take away your right to an abortion is if there is a specific mention in the Constitution that says it can. That means that the only way a government can take away your right to an education is if there is a stipulation in the Constitution that says you have no right to an education. This is the passage that should be cited by just about any progressive legislation where the regressives demand Constitutional authority for the law.

  • jdog on August 12, 2011 9:04 PM:

    The word "specifically" is not in the 10th Amendment. It merely refers to "those powers not delegated." There are enumerate powers, but there are also implied powers as well as inherent powers. Even Madison thought there were implied powers (though he would have interpreted these to be much more narrow than Hamilton). In U.S. v Darby (1941) Justice Stone famously called the 10th Amendment a "truism" because it tells us absolutely nothing about what is delegated and what is not delegated. He said it merely means that "all has been retained which has not been surrendered." It gives no guide as to what those might be.

    The Right can scream "10th Amendment" all they want. Doesn't mean their point is the best argument -- and we should be pointing this out to them repeatedly, until they have to engage it directly.

  • nk007 on August 12, 2011 10:31 PM:

    @Grumpy,

    Sorry, grumpy you assertion is not true about lynching. Congress has never acted when it comes to lynching! It tried but failed. both FDR and Harry Truman (now the icons of the "holier than though progressives") never supported a federal anti-lynching law for fear of loosing support from the Dixiecrats (Southern Democrats).

  • Old Uncle Dave on August 12, 2011 10:32 PM:

    If Perry and the other "tenther" candidates really believed in states' rights and the tenth amendment, they would endorse HR 2306, the Paul-Frank bill to let the states make their own marijuana laws.

  • Gangis Khan on August 13, 2011 12:24 AM:

    Nowhere in the Constitution does it say that the federal government can maintain an Air Force.

    Nobody ever asks "10th Amendment Conservatives" about that little fact. Does Rick Perry want to abolish the Air Force? Seems like a reasonable question for a would-be Commander in Chief.

  • Shadow on August 13, 2011 3:36 AM:

    And if he does believe it, how can he make an exception for the definition of marriage, which he stated during the debate, should be decided at the federal level.

  • Crissa on August 13, 2011 5:32 AM:

    There's one thing states can't do, that the federal government can do... And that's health care, welfare.

    Because states cannot opt out of US citizens' right to move from state to state, and US citizens will move to the state with the most generous laws for their situation. And if those laws are unequal in cost, well...

    ...Well, then the federal government should take care of it. Besides, general welfare? What's more general welfare than welfare?

  • Nancy Irving on August 15, 2011 4:16 AM:

    "...maybe he could explain why the federal government has the constitutional authority to bring health care coverage to a 65-year-old American, but not a 64-year-old American."

    Brilliant!

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