When “General Welfare” Becomes a Blank Check: Why the Supreme Court Should Reexamine Congress’s Spending Power
Does Congress actually have the power to spend? One looking only at the Constitution’s text would be hard-pressed to find any language that grants Congress a general spending power. Yet modern-day Spending Clause jurisprudence has given Congress an expansive spending power that cuts through other constitutional constraints.
The Spending Clause, art. I, § 8, cl. 1, states that:
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.
Based on this language, what has been misconstrued as the “spending power” is merely a restriction on Congress’s power to tax. And the Constitution permits the levying of taxes for only two reasons: to pay debts, and to provide for the general welfare of the United States.
But the Founders fiercely debated the proper interpretation of the Spending Clause, and the disagreements about the limits on Congress’s spending power continued amongst them years after the Constitution was ratified. During the Constitutional Convention, Gouverneur Morris—who supported the establishment of a general spending power but knew that others did not—attempted to stealthily alter the clause’s punctuation by inserting a semicolon (instead of a comma) after the word Excises. The result? Congress was suddenly granted the power to spend! Alas, the convention noticed this change and immediately restored the comma.
Then came the famous disagreement between Alexander Hamilton and James Madison. Hamilton, departing from the Constitution’s plain meaning and intent, argued during George Washington’s administration that Congress had a general spending power based on the wording in the Constitution about “provid[ing] for the common Defence and general Welfare.” James Madison rejected Hamilton’s broad view of Congress’s spending power, arguing that the power to tax and spend did not give Congress a blank check to do whatever it thought to be in the best interests of the nation. Instead, Congress’s power to spend was restricted to its powers enumerated elsewhere in the Constitution.
In 1936, the Supreme Court took a side in the debate over the scope of Congress’s spending power. In United States v. Butler, the Court, for the first time, held that Congress had a broad authority to spend for the “general welfare” of the United States. Justice Roberts, writing for the majority, recognized that “sharp differences of opinion” have persisted as to the true interpretation of the Spending Clause since the Founding, and ultimately concluded that the Hamiltonian position was “the correct one.” This view was affirmed a year later by the Court in Steward Machine Co. v. Davis and Helvering v. Davis.
Not only has the Supreme Court recognized Congress has a broad, almost unbridled power to spend for the general welfare, it has also granted Congress the power to regulate the states via conditions on its spending. Eleven years after Butler, in Oklahoma v. United States Civil Service Commission, the Courtheld that Congress could place conditions on its grants of federal funds to the States. In Oklahoma, the Court indicated that Congress can indirectly intrude on state autonomy and regulate areas traditionally reserved to the States through conditions on spending, even in instances where direct regulation would be constitutionally impermissible. Because, as the Court saw it: if a State does not like the condition attached to federal funds, it doesn’t have to take the money.
The Court has since repeatedly affirmed Congress’s authority to regulate via conditions on its spending. In South Dakota v. Dole, for example, the Court held that Congress could condition its grant of federal highway funds on the states’ adoption of a uniform minimum drinking age. The Court has placed some limitations on Congress’s authority under the Spending clause: its conditions on funds must be related to the purpose of the federal interest in the program, must not be coercive to the States, and must provide clear notice to the States as to what they are accepting when they agree to receive funds (also known as the clear statement rule). But whether these limits actually act as meaningful checks is questionable, and courts repeatedly uphold Congress’s attempt to regulate beyond its enumerated powers through conditions on spending.
While Congress is required to spell out its regulatory conditions based on the clear statement rule, it largely leaves the administration of its spending programs to the Executive branch. Spending conditions divest legislative power to unaccountable agencies, who make the final decisions on whether, and how, different groups of people should submit to different regulations—which ultimately obscures regulation from any form of public scrutiny.
This is troubling, and recent cases have highlighted the ways in which agencies have attempted to wield spending conditions as means to political ends. Take, for example, the Department of Education’s attempt during the last administration to rewrite Title IX—which was enacted under the Spending Clause to increase athletic opportunities for women and girls—to encompass gender identity. One district court recognized that such an attempt to change the statute through regulation was impermissible under the Spending Clause, because Title IX did not unambiguously condition the receipt of federal funds on the prohibition of gender identity discrimination in state educational institutions. NCLA filed an amicus brief at the Supreme Court in a related Title IX case, urging the Court to affirm the Spending Clause’s clear statement rule as an important constraint on Congress’s broad spending power. Recently, another district court rejected the Department of Homeland Security’s attempt to attach new immigration-related conditions to its federal grant for disaster and emergency relief funds, holding that the agency-created conditions were impermissibly coercive, ambiguous, and not reasonably related to the purposes of the grants to which they were attached.
The Supreme Court should revisit its New Deal-era Spending Clause cases and reconsider whether Congress should have been given an almost limitless power to spend in the first place. Until then, lower courts must continue to police the boundaries of the Spending Clause vigilantly, to ensure that the federal government does not abuse conditions on spending to encroach upon state sovereignty and upset the separation of powers.
November 10, 2025