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Justice Thomas’s Latest Dissent: The Constitution and Federal Spending

Justice Thomas’s Latest Dissent: The Constitution and Federal Spending

You can hear an audio by the author by clicking here.

This essay first appeared in the Jun. 12, 2020 Epoch Times.

Justice Clarence Thomas frequently uses concurring and dissenting opinions to explain the Constitution’s fundamental principles.

The latest example is his June 8 dissent in Health and Hospital Corp. of Marion County v. Talevski (pdf). It explains the meaning and history of Congress’s power to spend money. I recommend it to anyone interested in our Constitution.

Congress’s Legitimate Spending Power

The Constitution enumerates (lists) the powers held by Congress and other branches of the federal government. A basic constitutional principle—which the Supreme Court honors more in words than in reality—is that those powers are limited to the items enumerated.

To carry out its enumerated powers, Congress must appropriate money. By way of illustration, if Congress chooses to “regulate Commerce with foreign Nations” (Article I, Section 8, Clause 3) it must pay customs officers, provide them with equipment and supplies, and finance office space for them. Similarly, Congress’s power to “raise and support Armies” (Article I, Section 8, Clause 12) necessarily includes spending money for salaries, equipment, housing, transportation, and so forth.

Almost every enumerated power implicitly contains some authority to spend.

Congress also may impose conditions on spending. For example, as a condition of hiring federal employees and contractors, Congress may impose rules of non-discrimination.

The Metastasis of the Spending Power

Among Congress’s enumerated powers is the Taxation Clause (Article I, Section 8, Clause 1). This also includes some spending authority: To collect taxes, the federal government must be able to spend so as to pay, equip, and house tax collectors.

The Taxation Clause adds to the phrase “lay and collect Taxes” the following additional wording: “to pay the Debts and provide for the Common Defence and general Welfare of the United States.” This addition is called the General Welfare Clause.

The purpose of the General Welfare Clause is to limit the taxing power. It clarifies that Congress may raise money only for “general Welfare” purposes, not to feed special interests.

However, as I outlined in my Epoch Times series “How the Supreme Court Re-Wrote the Constitution,” in the late 1930s and early 1940s the court stopped enforcing most of the Constitution’s restraints on federal power. The series describes the forced and unnatural reading the justices imposed on the Constitution in those days. As part of this process, the court issued three decisions asserting that Congress’s power to spend is almost unlimited.

Specifically, the court converted the General Welfare Clause from a restriction on taxes into an unlimited “Spending Clause.” The justices’ opinions ignored almost all the evidence from the Constitution’s adoption. Among Founding-era materials, they relied solely on a paper issued by Alexander Hamilton after the Constitution had been adopted. At the time, Hamilton was—according to his private notes—trying surreptitiously to convert the federal system into one with an all-powerful central government.

The court’s decisions had predictable results. Federal expenditures exploded. Congress usually stopped balancing its budget and accrued massive debt. Members of Congress used their unlimited spending power to buy reelection, enabling some to stay in Congress as long as 50 years. Congress created a massive bureaucracy to address details it didn’t have time or inclination to address.

And in partnership with that bureaucracy, Congress started to micro-manage American life by funding almost everything and slapping conditions on the funds.

The Court’s Opinion in the Talevski Case

The federal program at issue in the Talevski case was the payment of Medicaid funds to nursing homes. The government imposes a very long list of conditions on that payment, including rules for how nursing homes treat their patients—as if most federal politicians knew anything about health care!

Mr. Talevski’s family claimed a county-owned nursing home had violated one of those conditions. Using a post-civil war federal statute, 42 U.S.C., sec. 1983, they claimed the nursing home had denied Mr. Talevski certain “rights, privileges, or immunities … secured by [federal] laws.”

The Supreme Court agreed with the Talevskis. By a 7–2 majority, the justices ruled that some of the conditions on federal payment were “laws” that “secured rights.”  The opinion was written by Justice Ketanji Brown Jackson.

Justice Samuel Alito dissented on technical grounds, and Justice Thomas agreed with him.

In a separate dissent, Thomas reviewed the history and meaning of Congress’s power to spend money.

The Thomas Dissent

Justice Thomas’s fundamental point was this: When Congress offers a financial grant in an area outside its enumerated powers (such as a grant to nursing homes), Congress may impose conditions. Anyone accepting the money accepts the conditions. But those conditions are merely terms in a contract between the federal government and the grantee. They are not “laws” as the word is employed in 42 U.S.C. sec. 1983.

In his 36-page dissenting opinion, Thomas recounted the history of Congress’s spending power. He showed how the power—as expanded by the Supreme Court—has grown to largely dominate American life. He explained how it has rendered the states merely “disaggregated sites of national governance, not separate sovereigns.”

He recognized the published research by several scholars who have explored Congress’s spending power in detail. In their personal political views, these scholars largely span the political spectrum. But all have been honest enough to admit that the court was wrong when it converted the General Welfare Clause into unlimited spending authority.

The first one to write on the subject was David Engdahl of Seattle University. He was followed by Jeff Renz, who wrote an important article on the subject while serving with me on the law faculty at the University of Montana. Next came John Eastman, formerly dean of Chapman University’s law school. Eastman, who as a young law graduate clerked for Thomas, is the same man the FBI harassed because he provided legal advice to Donald Trump after the 2020 election. In a 2001 article, Eastman explained that the General Welfare Clause was designed as a curb on congressional pandering to special interests.

I came next. Thomas cited my 2003 survey of the history behind the General Welfare Clause (pdf). Thomas also mentioned how spending is incorporated into the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18), as explained by Gary Lawson of Boston University and the Israeli scholar Guy Seidman. In an earlier opinion (pdf), Thomas cited a book I co-authored on the Necessary and Proper Clause with those two and with Geoff Miller of New York University.

In other words, Thomas’s opinion isn’t merely a survey of Congress’s spending power, but of the published research as well.


Justice Thomas’s separate opinions contain a wealth of information about the Constitution’s original meaning, how the document was applied in later years, and the scholarship on the subject.

When Thomas retires, some enterprising author no doubt will collect these opinions into a single volume or set of volumes. They will be an invaluable resource for future generations.


Rob Natelson