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Monday, February 18, 2013

Congress Mapping the Human Brain: Is the Oxymoron Constitutional?

In his 2013 State of the Union Address, President Obama cited brain research as an example of how the government should “invest in the best ideas.” He pointed to the $140 return to the economy from every dollar that had been invested to map the human genome. He added that funding the Brain Activity Map would be a job-creating investment in science and innovation. In terms of comparative advantage, enlarging the “knowledge economy” in the U.S. is a good strategy for being able to maintain a formidable standard of living. That the federal government has any constitutional basis to be funding a map of the human brain is a question the American president seems not to have considered. The question ought to be more salient in “industrial” policy debates. Indeed, it is not as though the economic and political domains were so disparate that consideration can effectively be delimited to matters of return on investment to the economy as a whole. By extension, what are taken as purely economic considerations in the E.U., as if it were solely an economic union, actually involve the political dimension.
                                                                A Congressional rendering of how the human brain might be mapped?      Source; nytimes.
As for whether Congress could constitutionally fund scientists to map the human brain, one would probably point to the spending clause of the U.S. Constitution, whereby the Congress has the authority to spend “for the general welfare.”  Scientific advancement, it could be argued, is in line with the general welfare. The problem is that under this rationale, practically any “investment” would be in the public welfare, even if only as a byproduct. It would be difficult to find an instance of public spending that does not have any externality in the sense of benefitting the public generally. Were the spending clause not subject to, or limited by, the enumerated, or explicitly listed, powers of Congress, those powers would not be limited. So by logic or reason alone, it stands to reason that the spending clause must have been intended to furnish Congress with the authority to fund its enumerated powers.
Turning to the enumerated powers of Congress, one might argue that the commercial implications from mapping the human brain qualify the funding as within the interstate commerce clause of the U.S. Constitution. However, for something to have implications for commerce generally—not even specifically interstate—means that that thing is not itself commerce. Even if the activity funded were commerce, it would presumably have to be that which is conducted across state lines. Furthermore, to argue that the regulating of interstate commerce extends to investing in the commerce itself twists the definition of regulation, which is to set rules.
President Obama could be challenged for his presumption that the federal government is the definitive level of government for virtually any matter of public policy to be enacted into law. To be sure, Alexander Hamilton, a delegate to the Constitutional Convention and the first U.S. Treasury Secretary, had wanted the states to be mere districts implementing federal policy. Of course, he also wanted the U.S. President to be in office for life. That he had not been born and raised in any of the colonies that would become the United States may explain his alien political philosophy from an American standpoint. Barak Obama, while doubtlessly born in Hawaii, lived abroad in his formative years. This may be why he has been susceptible to what Sandra Day O’Conner said is Congress “acting like a state legislature.” That is to say, Barak Obama may not have fully realized the distinctiveness of federal government on the empire scale. In other words, that the Founders deliberately gave the U.S. Federal Government the imperial powers that the King of England had in governing the British Empire is probably a point that the future American President would have missed while at school as a boy in Indonesia.
Generally speaking, as the American electorates lose their sense of what these United States are, we increasingly run the risk of having the ship of state operated in ways that are at odds with its design and essence as an entity. Put another way, if you forget who you are and begin to act in ways that are at odds with who you really are, you are undoubtedly headed for trouble—if not soon, then eventually.


John Markoff, “Obama Seeking to Boost Study of Human Brain,” The New York Times, February 17, 2013.