At Law & Liberty, Robert G. Natelson: A Constitutional Rule on Federal Spending. From the introduction:
The new Department of Government Efficiency informs us that the federal government, through its Agency for International Development (AID), has been distributing taxpayer money for condoms in Gaza, DEI in Serbia and Ireland, and transgender stage productions in Colombia and Peru. (A longer list is here.)
These revelations should renew questions about what constitutional limits there are on federal expenditures. At what point does the use of taxpayer money cease to be legitimate and become merely theft?
For a constitutional originalist, the answer is easy: The Constitution permits the federal government to spend funds only when exercising its enumerated powers, and not otherwise. Each enumerated power carries with it some spending authority, either through its clear wording or with the assistance of the Necessary and Proper Clause.
Of course, the federal government no longer pays attention to the spending limits in the original Constitution, and has not done so for some time. The story of how this occurred begins with Alexander Hamilton. …
I'm not sure about the enumerated power limit on spending. But even if one isn't sure about that limit, there is a limit right in the text of Article I, Section 8, clause 1: Congress can — only — "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." It would seem, then, that at minimum spending that does not "provide for the common Defence and general Welfare of the United States" is not constitutionally authorized.
The Supreme Court has acknowledged this limit but said that the limit is in effect a political question; the Court will defer substantially (in practice, completely) to Congress. But that leaves open the question whether the President, in the exercise of the President's constitutional powers, can determine whether spending exceeds the constitutional limit. I think there's a case to be made that the President has not only a power but — based on the constitutional oath and the take care clause — a duty to do so.
Posted at 6:50 AM