Medicare, Viagra and the Welfare clause

This just in:

The federal government will spend nearly $2 billion in the next decade on male impotence drugs under its Medicare program, according to a new cost estimate from the Congressional Budget Office.

Now one lone representative--Iowa's Steve King--is sponsoring a bill to bar Medicare from giving such drugs to its clients.

Predictably, the Pharmaceutical Research and Manufacturers of America oppose the bill. Their argument is that

Products that treat erectile dysfunction are part of the overall treatment of patients. Medicare and Medicaid patients should not be like second-class citizens.

But by this reasoning why wouldn't Medicare patients be legally entitled to get, say, cosmetic plastic surgery at government expense?

The purpose of this post isn't to get worked up over a measly $2 billion. Rather, it's to make a much larger point: once Congress got away with passing the first law that involved an unConstitutional use of taxpayer dollars, it opened the floodgates to what we see today:

Congress can now use your tax dollars for anything it wants to do.

Billion-dollar subsidies for favored corporations? No problem.

Tens of millions to some congressjerk's pet project, like the Rock & Roll Hall of Fame? Hey, why not?

Billions in foreign aid to nations that hate America--while the U.S. government's debt is skyrocketing? You bet.

And there's not a damn thing you can do about it--aside from voting the big spenders out after one term. And of course that doesn't happen because the more federal pork a congressjerk brings home to the locals, the more likely he/she is to be re-elected.

Term limits would almost certainly have helped a great deal in reducing this damage caused by this vicious circle, because term-limited critters wouldn't have the huge incentive of re-election to spur them to pass wasteful spending bills. Unfortunately (and completely predictably) a federal judge ruled that a state's own voters couldn't pass a state law that term-limited congressjerks because...wait for it...such laws violate the Constitution! (Funny how judges who usually favor broad interpretations of the Constitution can become strict constructionists when it benefits liberals.)

So...who's to blame for this mess? Members of congress, certainly. But congressjerks argue that if they didn't bring federal pork home to their state, their less-responsible colleagues would simply take more home to *their* states. Which admittedly seems pretty certain.

Should blame rest with federal judges for banning a legislative remedy (term limits) enacted by a majority of responsible voters in various states? Certainly that's a reasonable conclusion, and it's definitely worth trying to keep "activist judges" from being appointed. But this is a *painfully slow* process. And it doesn't solve our current problem.

Should blame rest with gullible, short-sighted voters, who love it when taxpayer dollars are spent in *their* state, and who keep re-electing congressjerks who bring home the bacon? Certainly there's an element of truth there. But at least a majority of voters in *some* states have tried to do something positive (term limits, anyone?), only to have this reasonable and obvious remedy (if only a beginning step to solving the problem) swatted down by a Dem-loving federal judge.

My take as to who's most responsible for the problem is the federal judiciary--but not because a judge rejected term limits. Rather, the problem can be traced back to a U.S. Supreme Court case around 1905. As I recall (going on memory here; will try to find the cite) it involved a Minnesota electric utility, and the argument eventually hinged on what the Founders intended Article 1, Section 8 of the Constitution (entitled "Powers of Congress") to mean. Here's what that section says:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

In this section the Founders are clearly trying to specify what powers the central government was to have, and following the phrase quoted above is a list of 17 specific powers, including the power to declare war, to maintain a Navy, and to govern what would become the District of Colombia.

The argument centers over the phrase "to pay the Debts and provide for the...general Welfare of the United States". This is referred to as "the Welfare clause," and those who favor giving more power to the federal government interpret it as giving that government the power to make any law that can be claimed to improve the "general welfare" of the nation or its citizens.

Not surprisingly, many Constitutional scholars regard this reasoning as so specious and absurd as to scarcely be worthy of debate. They contend that this is shown by the fact that the Constitution's authors went on to list 17 specific powers and duties in the remainder of this section. If the founders had intended the "general welfare" phrase to give the government unlimited powers, why would they take the time to list any specific powers or duties after that?

This reasoning forms a well-known principle of jurisprudence, which holds that if a legal document can be interpreted two different ways, but one of the two would cause other provisions of the same document to have no purpose, then this interpretation can't be the right one.

Of course no court has had the chutzpah (at least not yet) to specifically state that the federal government has the unlimited powers implied in the strained interpretation of the "general welfare" clause. However, over the several decades following the decision in the Minnesota case, that case would be cited many times as having settled the issue in favor of permitting congress to make new laws expanding the reach of government into areas previously off-limits, under this same "welfare" clause.

Around 1970 the supporters of a stronger central government found another argument: The Constitution specifically gives the government the right to regulate "interstate commerce." Thus all that was needed to make a new law extending federal power was to show that some product or service--or act--had even the most tenuous link to "interstate commerce."

To goal-oriented (power-hungry?) legislators, everything can eventually be said to have some sort of link to interstate commerce.


So can we ever get back to a federal government of limited power? And if so, how?

There are two ways to answer yes to the first question. One involves large crowds of people with heavy weapons and pikes, so is unlikely to be well received. The second is to start electing more congressjerks who are genuinely committed to smaller government, and to a strict interpretation of the Constitution.

But in practice, even avowed reformers usually become fans of big government after a few terms in office. Which leaves only the first option.