Andrew Yang’s UBI Could Be Illegal

Andrew Yang’s UBI Could Be Illegal


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Winston Wang
Democrat
Managing Editor
Contributor on The Bipartisan Press

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Andrew Yang went from being ignored by major media sites to one of the most talked-about presidential candidates running in 2020. An entrepreneur concerned about the “4th industrial revolution” (read: machines taking over our jobs), Yang built his campaign around his Freedom Dividend (Universal Basic Income) that gives everyone over 18 $1000 a month.


Purportedly, the $1000 a month would, “provide money to cover the basics for Americans while enabling us to look for a better job, start our own business, go back to school, take care of our loved ones or work towards our next opportunity.” Funded by a value-added tax, the money would work towards helping people sustain themselves while they pursue other things that they want in life.

The fundamental idea of universal basic income may or may not be the right idea, but more importantly, UBI could be unconstitutional.

The tenth amendment of the Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Under the tenth amendment, any power not granted to the three branches of the government and not prohibited to the States are up to the States to implement. In other words, Congress can’t make laws regarding things it wasn’t specifically designated to govern.


Congress’s powers are granted under Article I, Section 8 of the Constitution. Specifically, Congress may, “…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,” among many other things.

In order for Yang to implement his Freedom Dividend, he would have to get Congressional approval. However, under the tenth amendment, Congress doesn’t have the power to impose taxes to fund the Freedom Dividend, nor does it have the ability to distribute it.

On its face, it seems like Section 8 is granting Congress the power to use tax money and distribute the Freedom Dividend (“general Welfare of the United States”).

However, Paul Engel from The Constitution Study writes, “There are three nouns used in the Constitution to designate the possessor of powers and over whom they can and cannot be applied: the United States, the States, and the People.  The term ‘United States’ refers to the union of states and its government.  The term ‘States’ or ‘Several States’ refers to the states either individually or collectively.  And ‘The People’ refers to individuals.”


In this case, the general welfare clause refers to the “United States.” If Congress were to enact a UBI bill, it would be for the welfare of “the People” not “the United States” since universal basic income benefits individual people, not the United States collectively.

While the Constitution is written very broadly and open for lots of interpretations, Paul also offers the reasoning behind why “general welfare of the United States” doesn’t apply in this case:

“…the United States of America is the name given to the union of states.  (Think of a corporation created by stockholders.). Today we tend to think of states as a subdivision of the federal government, but it is, in fact, the other way around.  The United States is a creation of the states to which they have delegated some of their powers.  In this context, the states have delegated to Congress the power to collect taxes for a limited number of things, common defense and general welfare of the union itself.  As James Madison put it, that is a general power.  The rest of Article I, Section 8 are the specific powers that make up the common defense and general welfare for the union.  So things like Foreign commerce, coining money, creating federal courts, establishing post roads, raising armies, etc. are the things Congress can collect taxes for since they are for the common defense and general welfare of the United States.  They are not for the welfare of the states themselves or for the people of those states. “


“If the General Welfare Clause gave Congress the power to do anything they could somehow identify as in the general welfare of the people or the states of the United States, then the vast majority of the Constitution, along with the idea of a limited federal government, would be effectively void.  Why create a list of powers if they are already included in the term “for the General Welfare”?  This is confirmed by James Madison in Federalist Papers #41:

It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare […] For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

— Federalist Papers #41

If giving out UBI isn’t an enumerated power given to Congress under the Constitution, then by the 10th amendment, Congress giving out UBI is unconstitutional and thereby illegal. After all, the United States was founded on the belief of a limited federal government, hence why any power not delegated in the Constitution is reserved for the States unless specifically prohibited, in which case the People hold them.


Indeed, even though UBI could be illegal, it wouldn’t be the first. Article I, Section 8 has been one of the most hotly debated parts of the Constitution, and possibly even largely ignored. James Madison and Thomas Jefferson both agreed that the general welfare clause referred to the power enumerated to Congress later on in the Constitution (to pay debts, to provide defense, etc), while Alexander Hamilton advocated for a much broader view, expressing that the clause granted Congress the power to spend, as long as it was for the general welfare of the federal government.

Supreme Court Justice Story sided with the Hamiltonian view in United States V. Butler, writing that Section 8 granted Congress to spend as long as it was for the general welfare of the federal government. Regardless though, UBI would qualify as the general welfare of “the People” not the federal government.

And yes, that means most of the federal welfare programs are illegal too, but that’s for another day.

Read the flip side: Andrew Yang is Different From the Other Democratic Candidates

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COMMENTS (24)

  • comment-avatar

    For those call this BS, no where do I say or believe that UBI and/or any of the welfare programs will be taken down in grounds of unconstitutionality.

    The point of this was that UBI could be interpreted as going against the idea of a limited federal government that some of our founding fathers supported, not that UBI won’t work.

    Albeit, the idea of a limited federal government isn’t really prevalent in our society today.

  • comment-avatar

    Surprisingly, I agree with this. UBI should be an option, not a forced choice, if it really does have to be implemented.

    • comment-avatar
      Tom Jones October 23, 2019

      Yang’s UBI is opt in. yanglinks.com to answer any questions you have.

      • comment-avatar
        David L Warnick October 23, 2019

        They need to leave yang alone and get him in office.he is right about ubi we got to build up from the floor. It’s all about the rich in our government.yang is the only person I see that can get the usa going again they write all that propangda on here trying to inluence people to think there way.americans are to smart to believe all the lies about yang and ubi

        • comment-avatar

          tell me, which part exactly of this is propaganda? which part is provable false?

          • comment-avatar
            Aye aye aye October 24, 2019

            It’s not so much the truth or falsity, but it is disingenuous. According to this argument the majority of federal spending is unconstitutional… I would hope that the author is out protesting all the other programs that would be affected.

      • comment-avatar
        Ashton Allen October 24, 2019

        So, I can opt in to not cover it with my Taxes? If not, then it isn’t optional.

    • comment-avatar

      Do I get to opt out of paying into it? No? Then it is in fact compulsory and not optional.

  • comment-avatar

    So does this mean that the oil dividend in Alaska is also illegal?

  • comment-avatar

    So does that mean that the oil dividend in Alaska is illegal?

    • comment-avatar

      No, because that’s not governed under the section 8. Section 8 pertains to the federal government. That oil dividend is maintained by the state.

  • comment-avatar
    David L Warnick October 23, 2019

    That’s bullshit they just don’t want andrew yang in there

  • comment-avatar

    If UBI is illegal for the reasons outlined in this op-ed, then social security and Medicare are also illegal.

    • comment-avatar

      “Of course, by those terms, most of the federal welfare programs are illegal too, but that’s for another day.”

      I don’t see what is so in unbelievable about that. Laws are constantly being deemed unconstitutional. Furthermore, section 8 has largely been ignored.

      • comment-avatar

        Well that’s obviously false

      • comment-avatar

        Now i got your point to clear you out..your main intension is even taxing people is a problem since due to that all these schemes will pop out..then show me one political leader who wants to free from all taxes and business.so social security is ok since it fits your narrative? why this crooks never even answered how come govt bailed out billons of dollers in 2009 crash and none asked..capitalism right…leave alone yang even the Nobel price Economist were Pro UBI…By the were is your ass when multibillion $ companies payed zero taxes…giving money to people is socilaism and avoid taxs and pay zero like a scum is capitalism.

  • comment-avatar
    Andrew Prevost October 23, 2019

    Under this interpretation, more than half of federal programs are illegal. It’s total nonsense, and not something that even the most conservative of Courts would rule. To do so would open a Pandora’s Box of challenges to federal authority.

    • comment-avatar

      Which is why nowhere in the article do I suggest that the Courts challenge this. I’m simply pointing out that UBI, as well as many of the welfare programs could be in a violation of the Constitution

  • comment-avatar
    Dougie4yang October 23, 2019

    Lob a half baked Yang critique and let those new clicks just roll through the site… genius

  • comment-avatar
    Felipe Rodriguez October 24, 2019

    All other welfare programs establish a precedent. This is click bate and at worst a smear against yang but expect this from media bought and paid for…I agree with Trump on this one fake news

  • comment-avatar

    The overall economy would be included in the “General Welfare” correct?

    UBI keeps the economy circulating, which strengthens the economy and is therefore serving to improve the general welfare of the United States