The Constitutional Budget Project

            Article I, Section 8 of the United States Constitution lists most of the governmental functions which were delegated to the Federal government.  James Madison, in Federalist 45, stated that “The powers delegated by the proposed Constitution to the federal government are few and defined.”
            However, especially since the early twentieth century, the Federal government has steadily expanded its functions beyond those that were delegated.  Federal taxes and spending have vastly increased over that same period.  Although the Federal courts have occasionally struck down one of these programs on Constitutional grounds, Federal judges have generally chosen to turn a blind eye to the Constitution.
            The Constitutional Budget Project of The Conservative Caucus Foundation (TCCF) periodically examines portions of the President’s proposed budget to determine the constitutional status of current spending programs.  
            Below you will find the results of this study from FY 2016, 2015, 2014 and 2013.

Click here for: 2016 Budget Analysis Figures

Department of Energy, FY 2016

The Department of Energy is unusual in that it combines both military and civilian functions. While the military programs (related to nuclear energy) enjoy a presumption of Constitutional legitimacy, programs subsidizing the development and use of various types of energy for civilian use do not fall under any of the authorized Constitutional functions. There is nothing that makes it a Federal responsibility to encourage the use of certain types of energy over others, nor to find new sources of energy.

The Federal Energy Regulatory Commission deals with interstate commerce, a proper constitutional function. Although some of the FERC's programs may go beyond constitutional bounds, we have given the entire amount the benefit of the doubt.

Although the Uranium Enrichment and Decommissioning Fund deals with a matter of interstate commerce, it makes the Federal government a participant in that commerce rather than merely a regulator, and therefore fails the test of Constitutionality.

Removing the civilian programs and retaining only those with military value would save the taxpayers almost $18 billion.

Department of Education, FY 2016

The Constitution mentions no Federal role in education. During the early years following the adoption of the Constitution, the closest that the Federal government came to subsidizing local education was setting aside small amounts of western land to be sold for the support of education when the surrounding area was sold to settlers. There was no continuing Federal involvement. Direct educational spending was limited to the military academies, which fall under the Congressional power relating to the armed forces.

We have therefore concluded that only two Education Department programs might be properly considered to fall within the functions listed by Article I, Section 8. Indian tribes living on reservations may be considered a Federal responsibility in a way that other American citizens are not, and it may be permissible to finance the education of their children.

Similarly, when the Federal government removes a portion of a state's land from state and local taxation by building a military installation, providing assistance in lieu of property tax revenue to the local schools for the education of children whose parents work (and perhaps even live) there could be considered a cost of maintaining the army and navy.

These two programs make up only $1.4 billion of what has been proposed. Eliminating the remainder would save taxpayers about $89 billion next year.

The topics in the name of this Department – "Housing" and "Urban Development" -- immediately cast doubt on the constitutionality of its programs. One may search the Constitution from beginning to end without finding anywhere any general authority for the Federal government to be involved in the building and maintenance of housing (although narrow exceptions such as military housing fall within the "necessary and proper" powers implied by the army and navy clauses). Not even the much-abused interstate commerce clause can be applied, since the Department's programs usually promote, rather than regulate, an increase in the national housing stock, and subsidize the purchase of housing by those with lower incomes. Nor is there any attempt to distinguish between interstate and intrastate commerce in this field.

As for urban development, one would be hard-pressed to come up with any argument that the Framers of the Constitution were thinking about a direct Federal role. Some were doubtful about urbanization, and even those who looked forward to it saw the Federal role as indirect (i.e. through promotion of commerce, tariffs, and a sound fiscal policy). Alexander Hamilton, the foremost advocate of a highly commercial, industrial and urbanized America, was satisfied to recommend primarily those indirect means, while working through private capital, such as the Society for the Encouragement of Useful Manufactures, to carry out specific projects.

Only a few of the HUD programs could be considered a close call when determining their constitutionality. Those providing housing to American Indians on reservations might be seen as part of a permanent Federal responsibility. On the other hand, there seems to be no clear evidence that the Jefferson-Jackson policy of Indian removal envisioned a continuing Federal role in housing. This could have been a policy, rather than a Constitutional decision, so we have chosen to give these programs the benefit of the doubt, listing them as constitutional while recognizing that there are reasonable grounds for disagreement.

The existence of an inspector general for the Department is obviously permitted (though his staff and budget would be much smaller if the Department's unconstitutional programs were eliminated).

Our final conclusion is that only 2% of the FY 2016 HUD budget can be defended as Constitutional, even with generous assumptions. The taxpayers would save $49 billion per year if the unconstitutional programs were eliminated.

The Department of Commerce includes many programs which are little more than subsidies for private businesses and which derive no authority from the Constitution. However, it also includes the decennial census and various programs involving interstate commerce and ocean areas under U.S. jurisdiction. Unfortunately, the subsidy programs have often been mixed with legitimate programs in such a way as to make it difficult to separate their funding. Economic Development Assistance, promoting fishery products, and Industrial Technology Services are among the subsidy programs that are clearly beyond constitutional authority. The Bureau of Industry and Security is responsible for enforcing export controls, such as those which prevent the export of sensitive technology, in accordance with law. Damage Assessment and Restoration administers the law regarding damage done in areas outside of state jurisdiction, such as the BP oil spill of 2010. Both fit within the Constitutional functions of the Federal government.

The National Telecommunications and Information Administration, assisted by the Public Safety Trust, is involved in the allocation of commercial spectrum bands. This falls under interstate commerce regulation.

The Census Bureau is assigned the task of carrying out a census every ten years for the purpose of apportioning congressional seats among the states. The Constitution mentions no other purpose, and the First Congress rejected an attempt to include the collection of economic information as well as a headcount. Although the more than one billion dollars for the Census Bureau in 2016 no doubt includes some necessary preparation for 2020, the description in the proposed budget indicates that most of the money will be used for interim censuses which have no constitutional foundation.

The half-billion proposed for the International Trade Administration likewise contains what appears to be a small amount for the enforcement of trade laws amidst a much larger amount of subsidies. We have listed it as unconstitutional.

The National Oceanic and Atmospheric Administration is heavily involved in subsidizing the fishing industry and promoting the "global warming" hoax. The fact that it also carries out some legitimate functions for ocean safety is insufficient to save it from being listed as unconstitutional.

The $111 million of the Department's general administrative expenses has been counted as Constitutional, but could be drastically reduced if unconstitutional programs were eliminated. This may well offset whatever small amount of Constitutional spending is within several agencies that we have listed as unconstitutional. We conclude that taxpayers could save more than $11 billion by limiting the Department to Constitutional functions.

The Department of State was among the first three cabinet departments created by the First Congress. It is responsible for assisting the President in the conduct of the nation's diplomatic affairs, a constitutional assignment found in Article II, Sections 2 and 3, and one which is clearly appropriate as a function of the Federal rather than the state governments. Article I, Section 10, even prohibits the states from making treaties with foreign nations.

However, only a small portion of the State Department's budget involved the foreign relations envisioned by the Framers of the Constitution. Many of the programs provide funding for an overseas expansion of the welfare state. Authority for these international handouts are found nowhere in the Constitution.

Military aid to foreign governments is a more difficult matter. The power to support the US armed forces may perhaps be considered to extend to supporting allies, especially in time of war. We have given it the benefit of the doubt and counted it as constitutional.

The State Department also makes payments to the United Nations and other international organizations. Participation in these multinational bodies requires a partial surrender of U.S. independence, The Constitution gives neither Congress nor the President any ability to take powers that were delegated by the states to the Federal government and further delegate them to a collection of foreign governments. This spending must also be considered unconstitutional. By reducing the State Department budget to Constitutional size, the taxpayers could save $28 billion.

Although the Department of Justice was not established until 1870, the Attorney General was one of the four original cabinet members, the position being created on July 17, 1789, with the responsibility "to prosecute and conduct all suits in the Supreme Court . . . and to give his advice and opinion upon questions of law when required by the President . . . ." In addition, U.S. attorneys were appointed to prosecute in the Federal district courts. These positions were made necessary by the fact that the Constitution allowed the Federal government to pass laws, within its enumerated functions, dealing with a broad range of topics, and requiring enforcement in Federal courts.

To the extent that Congress has enacted laws within its Constitutional powers, the Department of Justice has legitimate authority to enforce those laws, prosecuting offenders and imprisoning those who are convicted. Most of the Department's budget falls within these limits, and all such programs have been counted as Constitutional.

However, Congress has violated the boundaries of Federalism when it provides funding to state and local government for law enforcement that is merely state and local, with no clear Federal purpose. These programs have been listed as unconstitutional. The same is true of the Radiation Exposure Compensation program, whose description indicates that it goes far beyond compensation for exposure caused by the operations of the Federal government.

Furthermore, it should be noted that even those law enforcement programs that we have listed as Constitutional may include the enforcement of unconstitutional laws or unconstitutional interpretations of laws. Eliminating these would allow the Department to make at least slight reductions in such spending.

Nevertheless, it appears that nearly 90% of the Department's budget is Constitutional.

Most programs of the Department of Labor, primarily related to dealing with unemployment, have no basis in any of the Federal responsibilities enumerated in the U.S. Constitution. Neither unemployment insurance nor job training can fit even within a reasonable understanding of regulating interstate commerce. The Trade Adjustment Assistance Act programs, designed to help workers who have lost their jobs because of foreign competition, do have a peripheral connection with the regulation of commerce with foreign nations. However, the failure of Congress to carry out one Constitutional function does not create new, unenumerated Federal responsibilities. One might as well argue that if Congress fails to provide for border security, it then creates a Federal power to overturn the Fourth Amendment in order to search houses – without probable cause – for the illegal immigrants who have entered the country.

There are a few exceptions within this budget. Regulation of legal immigration appears to justify the Foreign Labor Certification Processing. At least some enforcement of ERISA (regulating pension plans) may be justified under interstate commerce, and we have given the entire program the benefit of the doubt. The Office of Workers' Compensation Programs oversees Federal employees and workers engaged in international or interstate commerce, and we have included the entire program as Constitutional rather than attempt to verify every element.

The Office of Federal Contract Compliance enforces certain requirements attached to the acceptance of Federal contracts. Some assistance to military veterans falls under the Constitutional power relating to the armed forces.

The headquarters element of the Department's budget, such as the Inspector General's office, has been counted as Constitutional, since it oversees some Constitutional programs. However, it should be noted that this portion of the budget would be much smaller if all of the unconstitutional programs were removed, leaving a very small Department to be managed.

In conclusion, we find that the Department of Labor, if reduced to Constitutional size, would have a budget of less than 2% of what the President has proposed for FY 2016. Eliminating the unconstitutional programs would save the taxpayer more than $79 billion.

The U.S. Constitution provides the Federal government with clear but also limited authority to own land within the states. The purposes listed are "Forts, Magazines, Arsenals, and other needful buildings." The phrase "other needful buildings" may only be read in the same way as the "necessary and proper" clause just below it. In other words, buildings needed to carry out the powers granted in Article I, Section 8 (e.g. Post Offices) and various other places within the Constitution come within Federal power, but there is no general authorization to buy land and erect buildings at the whim of Federal elected officials and bureaucrats for any other purpose.

Much of the Department of Interior's budget relates to the enormous holding of Federal lands, especially in some western states. There is no Constitutional authorization for such vast land ownership, and the record is clear that at the time of the ratification of the Constitution it was assumed that the Federal government would sell, as rapidly as practical, the western lands it owned. Therefore, unless Federal property is related to a carrying out a Constitutional function, it is illegitimate and must be considered unconstitutional.

One possible Constitutional beachhead within the system of national parks, wilderness areas, etc. is the system of national military parks. These were originally created within the Department of War and were ostensibly intended to preserve battlefields for the study of military history, especially by the U.S. armed forces (though this was never intended to prohibit civilian visits). The President's budget does not separate the expenses for these parks, nor is there any indication that the original purpose plays any significant role at the present time, and we have therefore proceeded to treat the entire park system as unconstitutional. However, we recognize that returning the parks to the jurisdiction of the Department of Defense would constitute a strong argument for their constitutionality, and therefore we may have slightly underestimated the amount of the Department's budget that could be considered Constitutional.

Some programs also include funding to administer the sale of lands. In principle this could be considered Constitutional. However, the budget does not include a breakdown of these amounts, and it seems likely that they are only a small portion of the program funding. Furthermore, such expenses should not be permanent since the amount of Federal land is finite, and disposing of the land will end such expenses. We have therefore treated them as amounts that would be eliminated, at least in the long term, under Constitutional guidelines.

It should also be acknowledged that the transition to a Constitutional status should be gradual so as to avoid greatly depressing land values by quickly dumping all excess Federal property on the market. Since the sale would likely extend over many years, some of the unconstitutional expenses related to managing and maintaining Federal lands would continue during the transition, but with steadily declining amounts.

During the early decades under the Constitution, the issue of "internal improvements" was a major Constitutional controversy. Some politicians argued that the Constitution provided openended authority for roads, canals, rivers and harbors improvements, etc. without any requirement for a clear national purpose. President Jefferson insisted that the Constitution as written allowed no such thing. Presidents Madison, Monroe, and Jackson vetoed internal improvement bills on that same constitutional basis. They were correct. Such projects are no more Constitutional today than they were previously. We have so treated them. Some projects, however, are genuinely national rather than local. We have included Federal flood control and navigation projects among these because of their interstate character, while recognizing that political influence may result in the funding of some purely local projects. (Anyone wishing for an edifying discussion of the distinction between national and local projects should read Richard Ellis' description of President Jackson's view, found on pages 19-25 of Ellis' The Union at Risk: Jacksonian Democracy, States' Rights and the Nullification Crisis.)

The Department has been assigned some Constitutional functions. Managing resources not within any state (e.g. offshore oil drilling) can only be a Federal responsibility.

Indian affairs are another Constitutional field. The Constitution recognizes that Indian nations that are not subject to the state governments have a special relationship with the Federal government, and the Supreme Court has described them as "domestic dependent nations". Regardless of whether the reservation system is either wise or just, it is within the bounds of Constitutional authority.

Although we have concluded that little more than 25% of the Department of Interior budget is Constitutional. Restoring Constitutional limitations would save the taxpayer almost $16 billion.

The Department of Agriculture provides assistance to American farmers through direct subsidies (including housing and energy subsidies), subsidized loans, marketing assistance, and research programs. Also included in this Department are some welfare programs, such as food stamps and the National Forest System. The listing of all these programs in the Fiscal Year 2016 Appendix: Budget of the U.S. Government takes up more space than the Department of Defense. However, none of these functions are authorized by the Constitution.

The Animal and Plant Health Inspection Service and the Food Safety and Inspection Program, to the extent that they are targeted at imports and interstate commerce, can be legitimate programs. The agencies also work with the Department of Homeland Security to deal with possible terrorist contamination of the food supply. Their budgets are listed as Constitutional. Programs in which producers voluntarily submit their goods for inspection (and pay for it with fees) before putting it into interstate or international commerce have been given the benefit of the doubt.

These agencies should be able to operate independently, or as part of another Department, without the large bureaucracy of the Agriculture Department. Therefore those administrative expenses, used almost entirely to administer unconstitutional programs, have not been counted as Constitutional.

Eliminating these unconstitutional programs would save the U.S. taxpayer more than $155 billion in 2016.

Click here for: 2015 Budget Analyses

Click here for: 2014 Budget Analyses

Click here for : 2013 Budget Analyses