A Plan to Renew the Promise of American Life, Plank 9
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Plank 9. Devolve unconstitutional spending
Specific Recommendations
9.1. Review all 2,200 federal departments, agencies, programs, and activities, to determine whether each is constitutionally authorized and best carried out by the federal government, as opposed to the states or private actors.
9.2. Eliminate or devolve every federal department, agency, program, function, and activity that is not constitutional, necessary, affordable, and moral.
9.3. With respect to any federal spending program that cannot be justified, follow a basic strategy of block-and-devolve, according to the following formula: If it cannot be justified, eliminate it. If it cannot be eliminated, devolve it. If it cannot be devolved, block-grant it. If it cannot be block-granted, reform it to make it block-grantable, and then block-grant it. And then, as soon as possible, devolve it. (In the case of state-federal collaborative programs like Medicaid, it may be necessary to first make the program all-federal before devolving it.)
9.4. Eliminate or devolve to the states all special preferences, welfare, and grants-in-aid, and all income-support programs not associated with federal employment. Means-test Social Security (and amend the Constitution to make Social Security lawful and ensure it does not bankrupt the government).
9.5. While welfare programs remain in the federal portfolio, adopt such commonsense safeguards as means-testing, time limits, anti-double-dipping rules, anti-fraud protections, and lock-out periods for non-compliance with program rules. Where necessary, use wait lists. But don’t make a fetish of work requirements, which are hard to enforce and tend to become riddled with self-defeating loopholes. Regard all such safeguards as band-aids and not as substitutes for devolution.
9.6. As a matter of principle, make participation in all federal welfare, health insurance, and income-support programs optional for individuals. For example, eliminate the individual mandate penalties in Obamacare and Medicare. In the same spirit, soften the late-enrollment penalties in Medicare Part B and Part D. And do not impose such mandates or penalties under other guises.
9.7. In the area of narcotics control, devolve federal expenditures and activities to the separate states and terminate the federal drug war, which, like alcohol Prohibition, has indisputably failed and done more harm than good, to individuals and society alike. Amend federal drug control laws and treaty commitments as necessary to effectuate a return to federalism and common sense.
Comments
Fiscal reform should focus at least as much on eliminating unauthorized spending as on reducing waste, that is, on getting the federal government out of whole lines of business that it should not be in, rather than just trying to run it in a more efficient and business-like manner.
Of every federal program and activity, we should ask a four-part question: Is it constitutional, necessary, affordable, and moral? If the answer to any of these questions is ‘No’ or ‘Unclear,’ the program or activity should not exist.
And activities identified as unauthorized or unnecessary should be eliminated or, where advisable, devolved to the states and the private sector.
What does it mean to ‘devolve’ a program or activity? It means we simultaneously eliminate it while reducing federal receipts by the same amount. This leaves states and the private sector free to continue the spending, if they wish.
Devolution can occur at any time, but it’s hard to do gradually. It works best in one fell swoop.
Okay. So let’s look closer at our four-part question.
Constitutional — Can the feds do it, legally? Is it required or authorized by the Constitution under an enumerated power, construed narrowly?
Necessary — Does it need to be done? Does it address a public need? Does it require federal involvement?
Affordable — Can the feds afford to do it? Is it fiscally responsible? Is it consistent with a policy of balanced budgets and routine, modest surpluses?
Moral — Is this the most beneficial way to do it? The least injurious to life, liberty and property?
Again, if the answer to any of these questions is ‘No’ or ‘Unclear,’ the specific program or activity should not exist.
As a general rule, if the states can do a thing and are not constitutionally prohibited from doing it, and if the feds are not given exclusive power to do it, then the states should do it and the feds should not. /1
Now let’s turn to some specific examples of things that should be eliminated or devolved.
1. Special Preferences
Special preferences — policies that favor some interests over others, or attempt to pick winners and losers in the marketplace — should be eliminated because they do not provide for the general welfare of the United States.
2. Welfare
The constitutional power of Congress to provide for the general welfare does not include a power to take care of our needs, share the wealth, fight poverty, ensure social security, promote local or regional economic development, educate your children, make you prettier, provide you with free stuff, or promote a vague and pleasant-sounding social uplift. All such objects, and the powers needed to pursue them, are left to the states and the private sector. To be lawful at the federal level, they would have to authorized by constitutional amendment.
The federal government, for example, has no warrant to be involved in education, except where necessary to carry out its national defense and civil rights powers. Ditto, its health care financing programs and its various income-support programs. Therefore, all purely welfare programs should be removed from the federal portfolio. It does not matter whether or not the federal aid goes to individuals or to state governments, nor whether it takes the form of spending, taxes, or regulation. Now, that said, consolidating welfare programs into grants-in-aid (block grants) can be a good transitional step. But the goal should be complete devolution.
3. Entitlements
Entitlements are unconstitutional and unnecessary at the federal level and must therefore be either eliminated, devolved or made lawful by constitutional amendment. Of course, to the extent people are financially dependent on entitlements, reasonable phaseouts are unavoidable and indeed morally requisite. /2
‘Earned’ Benefits. Medicare and Social Security are structured to look like earned benefits, but they are not. As a legal matter, they’re welfare. The proof is this is that if Congress abolished or reduced them tomorrow, no one could sue the federal government to prevent it (Flemming v. Nestor, 1960). For political reasons, the U.S. Supreme Court has embraced two convenient myths: first, that Congress’s power to tax-and-spend for the general welfare and common defense is not limited to carrying out the enumerated powers, but is pretty much unbounded. And second, that, while Congress has no power to provide ‘social insurance,’ it may impose payroll taxes that just happen to be dedicated to social insurance programs. As if the spending and the taxes were two totally unrelated things. Obviously, they are related. In Helvering v. Davis (1937), the Court said, like Sergeant Schultz in Hogan’s Heroes, “I see nothing! I hear nothing!”
Obamacare and Medicare. Obamacare rests on an individual mandate. If you try to go without government-approved health benefits, you will be fined. Likewise, Medicare. If you try to disenroll from it, the government will automatically take away your Social Security retirement benefits and make you repay any Social Security benefits received to date. The founders must be rolling in their graves. Could anything be more un-American? All such restrictions on our liberty should be repealed, cursed, and anathematized. /3
4. Earmarks
I do not share conservatives’ reflexive revulsion to earmarks, meaning specific local funding projects like a bridge, a lighthouse, or a military facility, which some Congressman manages to get built in his district. To be sure, earmarks can be a form of pork, and some are certainly wasteful. But they also tend to be cheap in the grand scheme. And more importantly, I would much rather have the people’s elected representatives deciding which district gets a bridge or a road than the alternative, which is unelected bureaucrats and politically pugnacious presidents. So long as an earmark meets our basic, four-part test of being constitutional, necessary, affordable, and moral, we should tolerate it. Now, to be sure, we should keep an eye on the aggregate amount of earmarking, and its occasional use as a form of legislative bribery, especially when it’s used to grease the skids for bigger government. But a total ban? Nah.
Conclusion
Every penny of government spending should be constitutional, necessary, affordable, and moral. If it fails that four-part test, it should not exist.
Federal welfare, income transfer, and entitlement programs do not meet that test. Therefore, they should be handed off to the states and the private sector through elimination or devolution. Alternatively, they should be authorized by a constitutional amendment.
Here is a default strategy for dealing with programs that don’t meet the four-part test and yet cannot be immediately eliminated. I call it ‘block and devolve.’ It goes like this. If it cannot be justified, eliminate it. If it cannot be eliminated, devolve it. If it cannot be devolved, block-grant it. If it cannot be block-granted, reform it to make it block-grantable, and then block-grant it. And then, as soon as possible, devolve it.
And if a ‘benefit’ (like Medicare) is compulsory for individuals, make it optional. This is America!
Notes
1/ I hasten to add that the feds may not do a thing through the spending power that they are forbidden to do directly or through some other power — for example, impose a national drinking age by attaching strings to national highway funding. P.S. I think 18 should be the legal age, not just for drinking, but for pretty much everything. Why not?
2/ Helvering v. Davis (1937) was wrongly decided. That’s the Supreme Court case that upheld the constitutionality of the Social Security retirement program. I know it’s politically verboten to say this, but the Constitution confers on Congress no power to operate a ‘pension’ program for individual citizens, outside the context of federal employment, nor indeed any power to be in the welfare or income-transfer business. Those kinds of activities are reserved to the states under the Ninth and Tenth Amendments. I realize I am barking into the wind on this, but dammit, the emperor has no clothes. Realistically, I think our best path is to get right with the Constitution by adding a constitutional amendment that grants Congress the power to run a cash-transfer social security program, but I would want the amendment tightly drafted to preserve Congress’s ability to ensure the program never bankrupts the government. For example, I think it should be able to define eligibility and adjust the benefits, including, importantly, through means-testing.
3/ Update, October 4, 2017: The tax penalty associated with the Obamacare individual mandate will be zeroed out effective January 1, 2019. Medicare’s individual mandate remains in effect. It, too, should be repealed.
Constitutional Amendments
This plank does not require any constitutional amendments but does mention the desirability of an amendment to make Social Security lawful.
Benefits
Reduces federal spending and help make it more manageable under a balanced budget.
Increases justice and freedom and encourages greater individual self-reliance.
Revised: October 4, 2017.
Published: June 21, 2013.
Author: Dean Clancy.
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