Enumerated powers

The enumerated powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress.^[1] In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of Rights and other protections in the Constitutional text. The 10th Amendment states that all prerogatives not vested in the federal government nor prohibited of the states are reserved to the states and to the people, which means that the only prerogatives of the Congress (as well as the Executive Branch and the Judicial Branch) are limited to those granted by the Constitution of the United States.

Historically, these powers have often been expanded to include other matters through broad interpretation of the enumerated powers by Congress and the Supreme Court of the United States.^[2]

1 Article I, section 8 of the U.S. Constitution
2 Political Interpretation
3 Recent history
4 Necessary and Proper Clause
- 4.1 McCulloch v Maryland
5 Recent case law
6 Enumerated Powers Act
7 See also
8 References
9 External links

Article I, section 8 of the U.S. Constitution

The Congress shall have Power To 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; but all Duties, Imposts and Excises shall be uniform throughout the United States; [Altered by Amendment XVI "Income tax".]

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

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.

Political Interpretation

There is a difference of opinion in the political arena on whether current interpretation of enumerated powers as exercised by Congress is constitutionally sound.

One school of thought is called strict constructionists, most often associated with political conservatives. They often reference a statement on the enumerated powers set forth by Chief Justice Marshall in the case McCulloch v. Maryland:^[3]

"This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted."^[3]

Another school of thought is referred to as very loose constructionists, most often associated with political liberals, who favor a more open interpretation of the constitution. They reference additional comments by Justice Marshall from the same case:

"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional," wrote Marshall.^[3]

Recent history

Strict constructionists oppose the current precedent, believing that the central government cannot act without specific Constitutional authority. Often the "plain meaning of the text," the Tenth Amendment, and the writings of some Framers of the Constitution are used to support their argument. Conversely, loose constructions sometimes endorse Congressional action beyond the specifically enumerated powers, believing that the central government has historically addressed social, economic, and environmental issues that were unforeseen by the framers of the Constitution. They often reference the Preamble to the United States Constitution, Taxing and Spending Clause, the Necessary and Proper Clause, and the Commerce Clause to support their belief in a larger role for federal authority.^[2]

Necessary and Proper Clause

Interpretation of the Necessary and Proper Clause has been controversial, especially during the early years of the republic. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers. Loose constructionists, on the other hand, interpret the Necessary and Proper Clause as expanding the authority of Congress to all areas tangentially-related to one of its enumerated powers. It is often known as the "elastic clause" because of the great amount of leeway in interpretation it allows; depending on the interpretation, it can be "stretched" to expand the powers of Congress, or allowed to "contract," limiting Congress. In practical usage, the clause has been paired with the Commerce Clause in particular to provide the constitutional basis for a wide variety of federal laws.^[4]

McCulloch v Maryland

The defining example of the Necessary and Proper Clause in United States history was McCulloch v Maryland in 1819. The United States Constitution says nothing about establishing a national bank. However, the United States government established a national bank that provided part of the government's initial capital. In 1819, the federal government opened up a national bank in Baltimore, Maryland. In an effort to tax the bank out of business, the government of Maryland imposed a tax on the federal bank. The branch's cashier James William McCulloch refused to pay the tax. Eventually the case was heard before the United States Supreme Court. Chief Justice Marshall held that the power of establishing a national bank could be implied from the U.S. constitution. Marshall ruled that no state could use its taxing power to tax an arm of the national government.^[5]

Recent case law

The case of United States v. Lopez^[6] held unconstitutional the Gun Free School Zone Act because it exceeded the power of Congress to "regulate commerce...among the several states." Chief Justice William Rehnquist wrote, "We start with first principles. The Constitution creates a Federal Government of enumerated powers." For the first time in sixty years the Court found that in creating a federal statute, Congress had exceeded the power granted to it by the Commerce Clause.^[7]

For more details see: The Rehnquist Court and the Commerce Clause