“Police power” is the term of art given to a state having inherent government power over general welfare – to legislate, administer and adjudicate — to reasonably exercise control over persons and property in instances where the state has a substantial interest in health, safety, security, morals and welfare. The Constitution of the United States of America was constructed in such a manner as to avoid providing police power to the federal government, except in the single instance provided in Article I, Section 8, Clause 1:
“The Congress shall have power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, imposts and Excises shall be uniform throughout the United States.”
The above clause is known as the “spending clause” and was written to be tightly construed so as not to invite use as a “police power” by the federal government. Notice the word “welfare” appears in both statements above, seemingly giving duplication. The meaning of general welfare for the federal government is limited, but large in breadth. It limits the federal government to spend only for welfare that is “general.” The people obtaining the federal government’s welfare have to be everybody among all the states and territories. Obviously, that does not make general welfare a state concern with the scope implied in the Constitution. Only the federal government is able to spend on the scale that its grant of power requires. The states have no such grant of power in the Constitution, and would fail at the task at any rate. The Constitution pairs general welfare with “common defense,” another grant of power that is vastly beyond any state’s means; therefor making it similar to general welfare.
The corrupt use of federal power over general welfare occurred during the presidency of Franklin D. Roosevelt. The Supreme Court approved use of the “spending clause” in affirming the Social Security Act and the combined federal and state Unemployment Compensation acts. Neither act meets the requirement of “general welfare.” They are national in scope, but only cover a small number of the people; therefor, failure to be constitutional. The manner in which the Supreme Court acted was in my opinion totally corrupt; it was clearly set in the presentation of the case to obscure it unconstitutionality. It followed the same path as the Anti-Federalists explained in their minority opinion would eventually result from the meaning of a particular part of the Constitution; “the Spending Clause.” It came to be corruptly confirmed by the Supreme Court, exactly as was foreseen. If the “Spending Clause” does no sanction spending appropriation considered, no other part of the Constitution can work either. Therefor, only the states have power to legislate welfare spending in keeping with Amendment X of the Bill of Rights to the Constitution. That is a non-starter as an alternative, as each state would have to enact and share in consolidation with all other states the full weight of the spending for a single unified administration across the nation. No way!
What the Congress got to fool the Supreme Court one time is beyond probability to work again because the likely result from that would be more than catastrophic for the nation’s survival. The reason is that the second attempt would also have to invoke the Spending Clause and imply, that the New Deal cases would provide precendial coverage. It is beyond belief that the problem with the New Deal confirmation was corruption, and the New Deal programs would be taken down. The liabilities of Social Security today are beyond hundreds of trillions of dollars. Let it be hoped that the future does not present the opportunity of survival of the government hinges on causing default on Social Security and Unemployment Compensation programs.
Today’s Congress, cut from the same cloth as the New Deal Congress, is still attempting other corrupt schemes. The Public Health Service Act of 1944 (“the PHS”) provides the PHS with power to prevent the transmission, or spread of communicable diseases from foreign countries and among the states or possessions by using enumerated means of doing so. The Center for Disease Control and Prevention shares the same power under the PHS, but to no avail. The specified means in the law are nowhere similar to even pretend they apply to vaccines. The CDC attempted to carry out Congress’ scheme to prohibit mortgage foreclosures by landlords and stay rent payments by tenants, in order to provide relief for unemployed tenants of certain residential housing. The Supreme Court prevented the CDC scheme from continuing as unconstitutional. The amount of residential housing mortgages that would have been defaulted would likely have caused a repeat of 2008, subject matter and all.
State police power — the only branch of government within the United States having this power (see the 10th Amendment) is was to please only each state’s own population. State governments being closer to its citizens in geography and politics are more likely to be satisfy a majority in their approach to public health solutions to the pandemic only within their discrete boundaries. The Supreme Court has approved two previous cases where state law prescribed “exclusions” to the states’ mandate for uniform vaccinations. Jacobson v. Massachusetts (1905) and Zucht v. King (1922).
President Biden unilaterally ordered federal employees and contractors to attest to getting vaccinated or undergo weekly testing and other safety protocols in order to keep their jobs.
Whereas exceptions have been made to mandating vaccination, the exceptions seem to be based on the facts that the vaccine is alternatively the same as medicine, and many religious organizations have dogma about taking medicines which have protected their adherents from 100% mandates. Seemingly contrary to the above, mandates to wear masks for businesses, schools and offices to remain closed for periods of time are not accorded exceptions.
Summarizing the problem; police powers act by negating freedom. Good laws have to be crafted to be understood by the people, and to make clear who is responsible to change laws defectively written or administered. Overlapping jurisdictions, multiply the potential problems! My point in writing this essay is that the Covid-19 pandemic has put every level of government within the nation, from top to bottom in a position to exercise general welfare police power. I have spoken to the police power issue of the federal government at the beginning of this essay. It may give advice to state and municipal governments, it may make appropriate resources available to the states and municipalities. It can use its purchasing power, as it has in buying vaccines, and having them distributed without charge to the states.
If the federal government had a legacy of respecting the constitutional limits of the federal government, the limits of authority would have been self-evident to every level of government as soon as the pandemic surfaced. Instead, the legacy actually existing is that the Congress, being the supreme legislator for the nation has usurped authority of the states for so many years that it has become common knowledge to look to the Congress to solve every problem. That is not in the nature of the Constitution’s meaning and it has resulted in what Ronald Reagan said two generations ago, that the Congress has an information, or an understanding problem that prohibits it from legislating effectively; they have made themselves “the problem.” At the time the federal government was first formed, every piece of legislation was a separate document; one subject, one document. Usually one-page too. It is by ignorance that Congress expects 2000-page laws be administered effectively, of which Dodd-Frank and The Affordable Care Act or but two of the worst examples. It the Infrastructure Bill and the complimentary $3.5 trillion whatever-it-is-called passes it will be a the most expensive, ineptly administered appropriation ever, and it will give hope to future legislators in future Congresses to do likewise as a means of becoming re-elected as well.
Publiustoo.com October 9, 2021