Article I of the U.S. Constitution lists Congress’s enumerated powers, and then concludes with a final provision specifying that Congress has the power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. [Article I, Sec. 8, cl. 18.]
This clause generally is interpreted to enhance Congress’s authority to include implied powers incidental to exercising its enumerated powers. In McCulloch v. Maryland, 17 U.S. 316 (1819), the Supreme Court relied on this Clause to uphold the power of the federal government to create a national bank — the First Bank of the United States — without an express constitutional grant of power to do so.
However, there is reason to believe that the “Necessary and Proper Clause” had another, quite different purpose — to limit the power of Congress to only enact those laws which met the twin tests of being both (i) necessary and (ii) proper. How much Congressional spending would pass such a test?
In addition to appropriating funds to keep the departments and agencies of government operational, Congress spends a great amount of money to fund “earmarks” for special projects requested by individual Congressmen. The examples are too numerous to list, but here are a few, compiled by Citizens Against Government Waste:
- $3 million for aquariums in Massachusetts;
- $61 million to combat “underwater pests”;
- $7 million for the Jimmy Carter presidential library;
- $6 million for the Ulysses. S. Grant presidential library;
- $828,000 for a Federal Emergency Management Agency operations center in Monte Vista, Colorado (population 4,194);
- $500,000 for the Birthplace of Country Music Preservation Project in Bristol, Virginia;
- $500,000 for the Bethlehem Museum in Pennsylvania; and
- $99,000,000 for a physical fitness center annex at Fort Wainwright in Fairbanks, Alaska.
In a country running an annual deficit north of $1.3 trillion, and with a national debt of over $32 trillion, how many of these earmarks for spending could be said to be both Necessary AND Proper?
In a 2021 Politico/Morning Consult poll, Americans opposed earmarks by a 43% to 19% margin — but the results might be different if the persons surveyed were told the spending would occur in their district.
The great Noah Webster — whose name has become immortalized as the father of Webster’s dictionary — warned:
if the citizens neglect their duty and place unprincipled men in office, the government will soon be corrupted; laws will be made … for selfish or local purposes … the public revenues will be squandered on unworthy men; and the rights of the citizens will be violated or disregarded. [Emphasis added.]
By any standard, America has more than its share of unprincipled men in office, and her revenues are being squandered by those unworthy men who are bankrupting the country — while finding ways to enrich themselves. Earmarks are one of the most egregious ways that Congress robs the public fisc.
Everything that Americans hate about Congress is encapsulated in earmarking. When one thinks of “the swamp,” or “pork barrel spending” or “waste and abuse,” earmarks are the most glaring example. In reality, earmarks are the ultimate quid pro quo, “you scratch my back, I’ll scratch yours.” Senators and representatives earmark specific funds for specific projects in their districts, and attach them to Continuing Resolutions or bills that may have nothing to do with the project that must be passed — that “everyone has to vote for.” That technique allows members to decry “pork barrel spending” while still getting their share of the pig.
Since there is little public scrutiny of earmarks, they can be used for disturbing purposes.
Rep. Alan Mollohan (D-WV) poured hundreds of millions of dollars in earmarks into his district. Some of those millions were directed towards West Virginian non-profits that he helped start and that are run by his former staff, while millions more federal dollars were directed to his landowner partner, CEO Dale R. McBride of FMW Composite Systems Inc. Ironically, or for this Congress maybe appropriately, while Mollohan was benefiting unscrupulously by hiding massive real estate assets and financial transactions, he was the ranking member on the House Ethics Committee.
In 2010, Republicans banned earmarks when they won control of the House in the Tea Party wave that year. But Democrats brought earmarks back when they took both houses of Congress in 2020. Infuriatingly to advocates of limited government, House Republicans joined Democrats — in a secret ballot — to bring back the practice in 2021.
Even now, the number of Republicans who oppose earmarks is tiny. On March 17, 2021, 28 House Republicans led by Rep. Chip Roy (R-TX) sent a letter to Nancy Pelosi pledging not to request earmarks for their districts. Out of 215 Republicans, only 13 percent signed the letter. In fact, under the GOP House majority, House Republicans received far more earmarks than Democrats. “Democrats requested 279 projects and were given a total of $246 million for them. Republicans, on the other hand, sought fewer projects — 256 — but were given a whopping $706.43 million for theirs.”
“No Republican should be for earmarks,” said Congressman Bob Good (R-VA). “Earmarks is a way to buy votes, earmarks simply is buying votes, and no Republican should do that.” While no member of Congress should ask for earmarks, as Noah Webster warned — when unprincipled men are in office, public revenues will be squandered.
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