An investigation into the constitutionality of federal financial assistance for mass transportation

In 1961 the United States Congress voted to offer financial aid to mass transportation systems around the country in order to rejuvenate a struggling industry. Today, after billions of dollars of Federal aid, mass transit still struggles. What used to be a transportation industry of the private sector, has become one within the public domain, with growing Federal capital and operating subsidies. What began in 1961 as a program to loan money to mass transit companies to purchase new vehicles and equipment has expanded into a Federal program providing capital grants and operating subsidies to needy transit systems. The constitutionality of this type of Federal involvement in local enterprises has been questioned by learned individuals for over 200 years. In order for this Federal activity to be constitutional, the power Congress claims must be incidental to some enumerated power in Article 1, Section 8 of the Constitution, for this power is not specified in that governing document. In fact, according to the Constitution itself, the exercise of this power must be "necessary and proper for carrying into execution" any of the enumerated powers. Some Federal aid advocates claim that the Interstate Commerce Clause gives Congress the power to subsidize transit. Others insist that the General Welfare Clause is a grant of broad congressional power to act in the interest of the Nation in whatever areas Congress chooses. Since the 'constitutional revolution of 1937,' Congress has had virtually unlimited power to authorize and appropriate Federal monies for the projects they have perceived as being of national concern. But, if a narrow, rather than broad, interpretation of the Interstate Commerce and General Welfare clauses is applied to such 'national interests' as mass transit, it can be argued on constitutional grounds that Congress' authority to grant Federal aid is very questionable. But that is not the reality in which mass transit and Congress exist. In spite of transit's failures, congressional support continues, and never has there been a serious constitutional challenge to such support. Even if there were, it is highly unlikely that the U.S. Supreme Court would find the activity unconstitutional.