In a previous article in these pages, I nominated Clinton v. City of New York as “one of the worst Supreme Court decisions in history.” In that 1998 case, the Supreme Court held unconstitutional the line-item veto, which had allowed the president to veto a portion of a bill without vetoing the whole. That removed an important check on uncontrolled federal spending and helped to propel us from a national debt of “only” $3.8 trillion to one of over $31.5 trillion, with no end in sight.
However, the line-item veto was an attempt by Congress to try to fix a deeper problem in the structure of our federal government that had also been created as an unintended consequence of another unwise Supreme Court decision, United States v. Butler, in 1936. A plausible argument can be made that the Supreme Court decision that created the problem is even worse than the Supreme Court decision that invalidated an attempt by Congress to cope with the problem that the court had created in the first place.
The courts often decline to perform functions assigned to them by the Constitution that they find difficult or unpleasant.
The framers of our Constitution gave us a federal government of powers that were “few and defined” and “will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce,” as James Madison explained in Federalist 45. The concept of a limited federal government went out the window with the Supreme Court’s ill-advised decision in Butler. Prior to that time, the federal power of spending money to “provide for the … general Welfare” was limited to spending to promote one of the enumerated powers, such as maintaining a post office or the military. Moreover, courts would enforce this limitation by allowing ordinary taxpayers to challenge federal spending on the grounds that it was intended not for the general welfare but to feather the nest of some special interest group.
That all changed with a casual remark by the Supreme Court in Butler that spending for the general welfare was whatever Congress said it was and that courts would no longer enforce the constitutional limitations on federal spending. That eventually led to results that framers such as Madison would consider unthinkable, such as a federal mandate that the states had to raise their drinking ages to 21 or lose federal highway funds. After all, Madison had assured his fellow citizens that if they adopted the proposed Constitution, then “[t]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” As a thoughtful 2020 analysis by the Congressional Research Service indicates, “Butler marked a turning point,” and, by 1976, it was firmly established that “[i]t is for Congress to decide which expenditures will promote the general welfare.”
The Washington Post’s George F. Will, among others, has pointed out that our Constitution has gradually been transformed from one designed to protect individual liberty against government encroachments into a “democracy” in which interest groups with their hands out compete to win federal largess. To be sure, other factors have also contributed to this change, including the enactment of the federal income tax, the seemingly unlimited power of the Federal Reserve to borrow and print money, the power of public-employee unions and other interest groups to contribute money to politicians, and the Great Society and other well-meaning programs.
But the unwillingness of the Supreme Court to keep the federal government within constitutionally prescribed limits is certainly a contributing factor. And the abdication of its role to keep federal spending within constitutional limits in Butler is not, unfortunately, an exception. The courts often decline to perform functions assigned to them by the Constitution or Congress that they find difficult or unpleasant. We can name this tendency the “reverse agency problem.” It is a well-known principle in economics that if an agent, like a lawyer, is paid by the hour and has influence over how much of his or her services are supplied, then the agent’s services will be oversupplied. The courts represent the inverse problem: Judges are paid a fixed amount — both in money and psychic income — whether they do all the work assigned to them or not. Thus, they have a strong incentive to develop legal doctrines that excuse them from performing work that they find irksome. Many doctrines in our law amount to judges saying, “I don’t want to do that, and you can’t make me.”
Like Clinton v. City of New York, the error made by the Supreme Court in United States v. Butler is hard to fix. There’s a scientific theory that holds that our bodies wear out as errors accumulate in our DNA. Sometimes I think our constitutional republic is like that. It is hard to survive the consequences of enough really bad Supreme Court decisions.
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