Tuesday, February 23, 2010

More questions

QUESTION: If Congress has multiple routes to achieve an objective, why shouldn't they be advised on the Constitutionality before going through all the waste to enact a law that SCOTUS shoots down?

ANSWER: Actually, they are. They receive testimony, and they employ a lot of lawyers. So they are advised. They just cannot be advised by judges without running afoul of the limits of Article III.

QUESTION: And why should many of Congress's objectives only be achieved through the Spending Power, which means, by default, that they are spending money in the first place?

ANSWER: To give the response of the Court, because all of those programs give states -- independent sovereigns in our federal republic -- a choice. They cannot be required to do the federal government's bidding. They can only be encouraged, mildly or otherwise.

QUESTION: And in response all the states have to spend money and resources to enact the laws that the central government wants to enact in the first place? It seems enormously ineffecient.

ANSWER: They do not have to. They choose to. It may be a difficult choice, especially given tight state budgets. But states have no constitutional entitlement to federal largesse in the first place. If states feel like they need more revenue, and do not want to depend on the federal government, they can raise their own taxes.

QUESTION: And in a down economy like our current one, do we not run the risk that the feds, who have the authority, apparently, to borrow untold sums from Europe and China, can all the more impose their will by giving the states, who are broke, "incentives" to do things?

ANSWER: Yes, that is certainly a policy risk. At the end of the day, our whole system depends on the voters keeping the government in check, to prevent the government from doing things that harms the country. If we are unable to select legislators who make decent choices, then the whole thing falls apart, regardless of what the Constitution says.