The Reason We Must Continue
By Mike Kapic
According to the US Treasury Department, 2017 marked the 60th consecutive year that the federal government increased America’s annual debt. Why, you ask, can’t we stop Congress from this out-of-control spending? And why don’t they find and eliminate inefficiencies like American families do when their income and spending become unbalanced. We try solving the federal problem by voting in the right people, but the spending and taxing just continue.
The Source What is the source of this continuing dysfunction in our federal governments behavior? Below are several examples of how bad behavior led to dysfunction. The first two, the Constitution’s commerce and welfare clauses, are pointed to by scholars as the primary source and authorization for our federal dysfunction.
The commerce clause (Article I, Section 8, Clause 3) states, “The Congress shall have power…to regulate commerce…among the several states….”
During the founding era, the definition of ‘commerce’ meant trafficking and trading of goods,87 nothing more. In the 1930’s, the Court shifted its interpretation of the modest “commerce” clause and expanded its interpretation to include trade such as agriculture, manufacturing, and production intended for interstate sale.88
By 1942 in Wickard v Filburn, the Court went even farther, unimaginably allowing the government to regulate noncommercial activity via the commerce clause. The Court allowed Congress to shamelessly unleash the word commerce, allowing the clause to imply its authority over everything.
The original clause’s intent was to allow Congress to regulate “trade between the states”. This then grew to include all forms of trade, manufacturing, retail etc. Then, in Wickard, it expanded it to include such things as divorce, child custody, driver’s licenses, local zoning, public schools, rodent protection, etc.
Filburn was a small Ohio farmer in the 1930’s who was fined for not selling his own wheat on the open market. To mitigate his losses due to the low price for wheat that year, he and his family decided to consume it themselves, causing the fine and subsequent Court ruling.89
Recently, the prairie dog population in the state of Utah has doubled due to efforts by the biologists at Fish and Wildlife Services. To secure their future, they attempted to move them away from residential neighborhoods, school yards, and cemeteries to a permanently protected conservation area. But the 10th U.S. Circuit Court of Appeals ruling overturned a previous court approval. The Appeals Court argued that the Commerce Clause could be stretched to reach noneconomic activities that affect any species.
Mike Lee and Jonathan Wood wrote in the Wall Street Journal, Nov 4, 2017, “In its ruling, the appeals court embraced a theory of federal power beyond any the Supreme Court has ever accepted. It held that if Congress adopts a “comprehensive scheme” to address some issue, then any regulation that furthers that purpose is constitutional under the Commerce Clause, even if it is unrelated to commerce. Were that theory to prevail, there would be no limit to what Washington could regulate.”
The Constitution is based on common law that assumes that anything not expressly prohibited is legal. The framers concept of limited government was for governments to not pre-legislate the lives of a free people beyond its enumerated powers.
Because of this expanded interpretation, the Interstate Commerce Clause has become the primary source of federal power in Washington DC.
The welfare clause (Article I, Section 8, Clause 1) states, “The Congress shall have the power to lay and collect taxes…to provide for the common defense and general welfare.”
It does not say anything about taxing and redistributing the funds as it sees fit. James Madison even argued against that concept in Federalist No. 41. He suggests there is a fine line between a strong government and liberty. But the Congress does tax and redistribute funds with entitlements such as Social Security. In fact, the Court has stated that Social Security is not a government insurance program, implying it could be a legalized Ponzi scheme because it redistributes money from workers to retirees.
The Supreme Court ruled in Helvering v. Davis (1937), that Social Security was not a contributory insurance program, saying, “The proceeds of both the employee and employer taxes are to be paid into the Treasury like any other internal revenue generally, and are not earmarked in any way.” Social Security holds no property rights for the contributors and is just a revenue source on one side and a welfare program on the other.
The crucial conclusion here is that since Helvering in 1937, our Washington DC politicians have embraced unconstitutional wealth transfer.90
In America’s first 130-140 years of avidly following the Constitution, the three federal branches maintained a belief in a limited government. It did not begin taking advantage of the welfare clause until the 1930’s. In 1917 for example, Congress had the opportunity when it decided to control alcohol. However, rather than easily passing a law prohibiting alcohol as approved by the welfare clause, it proposed an amendment to the Constitution. Congress recognized its limitations and restrained itself in following the Constitutions enumerated powers of Article I, Section 8. 91
Irresponsible Fiscal Management
The U.S. debt is over $20 trillion and climbing, and that does not include America’s long-term entitlement obligations. That means that every taxpayer in 2017 owes over $168,000. The ratio of debt-to-GDP is 105%, ranking the U.S. fifth in the world right behind Japan, Greece, Italy, and Portugal.
The debt-to-GDP ratio over the first 130 years of our history averaged below 15%. Spikes came from wars. It rose in the 1790’s to cover the Revolutionary War debt that was paid off by the 1830’s. It spiked again during the Civil War and WW II, but has been on the rise since.
But after the passage of both the 16th Amendment (income tax) and 17th Amendment (state oversight of U.S. senate lost) in 1913, the trend began rising slowly to the 1970-80’s period when it accelerated astronomically.
“To preserve our independence, we must not let our rulers load us with perpetual debt. I wish it were possible to obtain a single amendment … taking from the federal government the power of borrowing.” Thomas Jefferson.
Uncontrolled debt is detrimental to America’s security. It inhibits its ability to fund its needs because of growing annual interest payments. The only way America is to get out of debt is to first balance the budget. And since 1930, Congress has been motivated to balance the budget only five times. Congress paid down the debt by $22 Billion in those years. With access to billions and trillions of our tax money, Congress is not motivated to curb its spending or debt ceiling increases.
Because Congress does not want to stop its taxing, debt, and spending problem, the people and their states will have to fix it for them.
Federal Agency Abuse
The Federal Register logs new rules and regulations daily. Annually updated, they have totaled to over 90,000 pages covering every imaginable rule and regulation that Congress or federal agencies codify. Over the last 8-10 years, the government has required over 600 rules be implemented that cost over $100 million each. The annual cost to Americans has been estimated at $2 Trillion ($15,000/household) by Competitive Enterprise Institute.
Here are a few examples of abuses by unregulated federal agencies (360+) in Washington DC who are not held accountable by Congress, much less the American people. The purpose here is not to disparage what could be valuable services to the American people, but to offer a window into the modus operandi of the federal bureaucracy’s unregulated regulating.
In 2015, the Environmental Protection Agency decided to expand Congresses 1972 Clean Water Act of regulating pollution in “navigable waters of the U.S.” to include the Waters of the US. That meant the agency decided they weren’t given enough jurisdiction and now they should disregard a Congressional law by adding unnavigable waters such as streams, ponds, estuaries, irrigation ditches, and puddles to their regulatory purview.
The immediate effect was to reduce property rights of American citizens.
The EPA essentially converted the states from sovereigns into sub-agencies of the federal government. Affected citizens had little recourse. This was an overreach by a government agency to modify its own charter without Congressional approval.
An appeals court halted the action in 2016 and an executive order in 2017 reversed the agencies action of malfeasance. The lawlessness of this action is evidence of a bureaucracy stepping outside of the boundaries of the Constitution. The EPA answers to the Executive branch, but Congressional over site has little effect on one of the more powerful agencies in government.
Every ingredient in your Thanksgiving turkey dinner is federally regulated: Cranberries. Title 7, Part 929, establishes a “marketing committee” overseen by the U.S. Department of Agriculture to set quotas on the volume of cranberries shipped to handlers from growers in Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island, New York. The grower “allotments” help to ensure that the price of cranberries remains artificially high.
Falling Midwest Crop Prices Need a Free-Trade Response The feds buy $20 million of cheese to prop up prices. Rockwell City, Iowa The U.S. Department of Agriculture announced last week that it will spend $20 million to buy 5,500 tons of cheese from American dairy farmers. The food will be given to families in need, but charity is only a byproduct: The purpose of the purchase, according to a USDA press release, is “reducing a cheese surplus” and “assisting the stalled marketplace for dairy producers whose revenues have dropped 35 percent over the past two years.” The Wall Street Journal, September 3, 2016
Today’s federal bureaucracy began with the new progressive movement led by Theodore Roosevelt and Woodrow Wilson, both espousing that social experts can and should make the decisions that regular Americans cannot. The bureaucracy they envisioned has morphed into what has become known today as the ‘swamp’ or ‘deep state’, filled with ‘experts’ who are, it is claimed, more adept at the technical social engineering of policy than is Congress or the American people.
The colonial cry of “no taxation without representation” has morphed into “no regulation without representation” today.
Federal Term Limits
Five thousand years ago, ancient Athenians determined that rotating politicians annually or holding them to a prescribed limit of time, reduced corruption. During America’s colonial period, several colonies experimented with term limits. Benjamin Franklin, James Madison, John Adams and Thomas Jefferson, among others, supported Congressional term limits. George Mason, and others, favored term limits during the Constitutional Convention and declared, “nothing is so essential to the preservation of a republican government as a periodic rotation.” However, limits were to be added by amendment.
Colonial author and Revolution historian Mercy Otis Warren, warned that “there is no provision for a rotation [in the Constitution], nor anything to prevent the perpetuity of office in the same hands for life; which by a little well-timed bribery, will probably be done”.92 There have been 110 combined senators and congressmen that have served in Congress ranging from 36 to 59 years.
In 2014, Ballotpedia reported the net worth of members of Congress compared to average citizens. “The median American citizen saw his or her household net worth decrease from 2004 to 2012 by an annual rate of 0.94 percent, while members of Congress experienced a median annual increase of 1.55 percent. Members of Congress saw a total increase of $316.5 million in assets held by all members in the study.” In addition, Congress was exempted from the ACA healthcare law by claiming each member to be a “small business” of under 50 employees. Congress also set up a secret slush account to cover their personal malfeasance costs.
There have been 211 federal judges who have served terms ranging from 10 to 50 years. No Supreme Court Justice has served over forty years, but five have exceeded it through what’s known as ‘senior service’.
Federal Justice’s in the high or low courts are there to interpret the Constitution using its words and their meaning as written. The Court was intended by the founders to act as the milk stool’s third leg of our checks and balances system.
The 22nd Amendment of the Constitution has limited the term for Presidents. But limits on terms for the Legislative and Judicial branches of American government are only likely to come from amendments proposed through the state-led Article V process.
[Chapter reprinted with permission from Conventions That Made America: A Brief History of Consensus Building, 2018, pp 97—103, HuntForLiberty.com & Amazon]
87 Rob Natelson, The Legal Meaning of “Commerce” in the Commerce Clause, 2006,
88 Robert A. Levy & William Mellor, The Dirty Dozen, Cato Institute, 2008, loc979,
89 Robert A. Levy & William Mellor, The Dirty Dozen, Cato Institute, 2008, loc979-100490 Robert A. Levy & William Mellor, The Dirty Dozen, Cato Institute, 2008, loc631-73
91 Dustin Romney, Rule of Law: Why and How We Must Amend the Constitution, Create Space, pp 32
92 Mercy Otis Warren, Observations on the new Constitution, and on Federal and State Conventions, Constitution Society, 1788, #9,