9. Devolve Unconstitutional Spending

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. Follow a basic strategy of block-and-devolve, with respect to any program that cannot be justified, 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.

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.

9.5. In the special case of the joint state-federal Medicaid program, where block-granting may be impeded by state reluctance, it may be necessary, for practical political reasons, to first break the program up into multiple sub-block grants, focused on the program’s main sub-populations. Alternatively, it may be necessary, to get the program under control, to first make it all-federal (i.e., relieve states of the burden of helping to finance it). In either case, the ultimate goal should be orderly devolution to the states.

9.6. So long as welfare programs remain in the federal portfolio, adopt such commonsense reforms as means-testing, time limits, work requirements, anti-double-dipping rules, anti-fraud protections, and lock-out periods for non-compliance. Where necessary, use wait lists. Where feasible, provide in-kind help instead of cash assistance (for example, actual groceries instead of food stamps).

9.7. 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 Parts B and D. And do not impose such mandates or penalties under other guises.

9.8. In the area of narcotics control, devolve federal expenditures and activities to the separate states and terminate the failed federal drug war, which, like alcohol Prohibition, has indisputably done more harm than good, leading to more overdoses and higher addiction rates and fueling nasty organized crime and horrific violence. Amend federal drug laws and treaty commitments as necessary to effectuate a return to federalism and common sense in this area.


Fiscal reform should focus less on reducing wasteful spending than on eliminating unauthorized spending. The primary goal of reformers at the federal level should not be to ‘root out waste’ or to ‘run government like a business’ (a hopeless task). Rather, the primary goal should be to get the federal government out of lines of business it should not be in.

Of every activity, we must 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 activity should not exist.

  1. To be ‘constitutional,’ spending must be authorized or commanded by the U.S. Constitution. Since the Constitution is framed as a grant of limited, enumerated powers, we must always assume that any power not expressly granted, or implicit in a granted power, is withheld: it is reserved to the states or to the people in their collective capacity as our political sovereign. (Tenth Amendment.) To keep Congress’s legitimate powers from becoming unbounded, we must construe those powers as narrowly as possible without falling into absurdity. (Ninth Amendment.)
  2. To be ‘necessary,’ spending must be governmental in character and its purpose must be clearly unachievable by state or private entities absent federal involvement.
  3. To be ‘affordable,’ spending must be compatible with a policy of routine, modest surpluses, both in terms of volume and growth rate, must achieve its purposes, and must not suffer from high rates of waste, fraud, or abuse.
  4. To be ‘moral,’ spending must be inherently just, decent, beneficial, and non-injurious.

As a rule of thumb, if the states have the ability do a thing and aren 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.

Activities identified as unauthorized or unnecessary must be eliminated or, where advisable, devolved to the states and the private sector.

To ‘devolve’ an expenditure means to simultaneously eliminate it while reducing federal receipts by the same amount. Devolution leaves the states and private sector free to continue the federal spending at their own level, if they wish. Devolution can occur at any time, but it should never be done gradually. It only works if done in one fell swoop.

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 federal power 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 powers are left to the states and the private sector.

The federal government has zero warrant to be involved in education, for example, 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. All such federal welfare programs should be removed from the federal portfolio. It does not matter whether or not federal assistance goes to individuals or to state governments, nor whether aid takes the form of spending, taxes, or regulation. Now, I do think consolidating welfare programs into grants-in-aid (block grants) is a permissible transitional step, provided it is understood to be transitional.

3. Entitlements

Entitlements are unconstitutional and unnecessary (at the federal level) and therefore must either be made legal by constitutional amendment or else be eliminated or devolved. Of course, given people’s dependency on them, if they are to be eliminated or devolved, a phaseout period is unavoidable and morally requisite. /1

‘Earned’ Benefits. Medicare and Social Security are structured to look like earned benefits, but they are not. As a legal matter, they’re welfare. If Congress abolished or reduced them tomorrow, people could not sue the government to prevent it (Flemming v. Nestor, 1960). The U.S. Supreme Court has embraced two politically convenient notions: 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 in effect do so, as long as it treats the program’s payroll taxes and welfare spending as if there were unrelated. In other words, it’s constitutional as long as we all lie to each other about it.

Obamacare and Medicare. Obamacare rests on an individual mandate to participate in the program. /2

Likewise, Medicare. If you try to disenroll from Medicare, the government will automatically take away your Social Security retirement benefits and make you repay any Social Security benefits received to date.

These mandates are un-American and should be repealed. (I’m speaking here about the mandate to accept benefits, not the mandate to pay taxes.)

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. Earmarks are disparaged as pork, and some are certainly wasteful, but they tend to be modest in scope and cost, relatively speaking, and I would much rather have the people’s elected representatives deciding which district gets a bridge than unelected bureaucrats, which is the alternative. So long as an earmark meets our basic, four-part test (constitutional, necessary, affordable, and moral), it should be regarded as acceptable. Now, to be sure, we should still keep the level of earmarking in view, and we should object when earmarks are used as legislative bribes to grease the skids for bigger government. But a permanent ban on them? Nah.


Every penny of federal spending should be constitutional, necessary, affordable, and moral. If it fails that test, it should not exist.

Federal welfare, income transfer, and entitlement programs do not meet this test. They should be handed over to the states and the private sector. The basic strategy should be ‘block and devolve.’ If the entitlement 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.

Finally, if a ‘benefit’ (like Medicare) is compulsory for individuals, make it optional.


1/ 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 businesses. 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 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 social security program, but I would want the amendment to preserve Congress’s right to adjust the benefits, including through means-testing, to ensure the program never bankrupts the government.

2/ 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.

Constitutional Amendments

This plank does not require any constitutional amendments.


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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