The Constitution provides Congress with the power to tax (and presumably to spend), for specified purposes; to borrow money on the credit of the United States; and to dispose of the property of the United States. Question (especially to my originalist friends and to experts in constitutional history): Is there a power to lend? If so, where does it come from?
Congress borrows all the time, and we are more or less aware of the perils. But it also lends all the time—to Solyndra, and students, and small businesses, and big banks. It also backstops private lending , which amounts to the same thing as lending , risk-wise, when the private lending is done on the implicit guarantee of the United States government. What authorizes those measures?
I suppose that the power to lend may be “necessary and proper” to some enumerated power. If so, it reaches as far as the enumerated powers, or maybe as far as the power to spend: if Congress may simply dish out money to its friends, why can’t it do so on the pretense that it will be paid back?
A plausible counterargument is that all this could also be said, mutatis mutandis, of the power to borrow. That, though, is an independent power under the Constitution: why? The reason, I suspect, is time inconsistency. It’s one thing to say that Congress may tax current taxpayers in support of some enumerated power objective. It’s a different and more dangerous thing to say that it may saddle future taxpayers with the obligations. By parity of reasoning, it’s one thing to subsidize student tuition or home mortgages out of current revenues (assuming, contrary to fact, that we have them); it’s a very different proposition to make or guarantee loans that can’t and won’t be repaid. Should we say, then, that the power to borrow encompasses the power to lend: in for one risk, in for the commensurate other? Or should we say that the power to borrow excludes the power to lend—exclusio alterius, etc.?
Arguendo: If Congress itself may not lend money, may it set up (or own) private corporations (the Bank of the United States, Fannie Mae, Sallie Mae, Citicorp, the Fed) that just happen to be in the lending business? Or is there a constitutional problem when those outfits lend on the credit of the United States?
We have learned that the power to lend can be as dangerous as the power to borrow. Unlike borrowing, however, lending isn’t a power or danger that the Constitution explicitly adumbrates. So it’s worth asking where the power to put future taxpayers on the hook comes from. Somewhere along in our constitutional history, the question may have been asked and answered, and the answers may well be perfectly respectable; I’m just not aware of them. Any help or insight from whatever quarter greatly appreciated.