Enumerated powers
Encyclopedia
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
. 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
.
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.
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
:
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:
, 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.
in particular to provide the constitutional basis for a wide variety of federal laws.
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.
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.
is a proposed law that would require all bills introduced in the U.S. Congress to include a statement setting forth the specific constitutional authority under which each bill is being enacted. In every Congress since the 104th Congress
, U.S. Congressman John Shadegg
has introduced the Enumerated Powers Act, although it has not been passed into law. At the beginning of the 105th Congress
, the House of Representatives
incorporated the substantive requirement of the Enumerated Powers Act into the House rules.
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
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
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
.
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
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
in the case McCulloch v. Maryland
McCulloch v. Maryland
McCulloch v. Maryland, , was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland...
:
"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."
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.
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 AmendmentTenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
, 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
Preamble to the United States Constitution
The Preamble to the United States Constitution is a brief introductory statement of the Constitution's fundamental purposes and guiding principles...
, Taxing and Spending Clause
Taxing and Spending Clause
Article I, Section 8, Clause 1 of the United States Constitution, is known as the Taxing and Spending Clause. It is the clause that gives the federal government of the United States its power of taxation...
, the Necessary and Proper Clause, and the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
to support their belief in a larger role for federal authority.
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 ClauseCommerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
in particular to provide the constitutional basis for a wide variety of federal laws.
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.
Recent case law
The case of United States v. LopezUnited States v. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...
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
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
wrote, "We start with first principles
First principles
In philosophy, a first principle is a basic, foundational proposition or assumption that cannot be deduced from any other proposition or assumption. In mathematics, first principles are referred to as axioms or postulates...
. The Constitution creates a Federal Government
Federal government
The federal government is the common government of a federation. The structure of federal governments varies from institution to institution. Based on a broad definition of a basic federal political system, there are two or more levels of government that exist within an established territory and...
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.
- For more details see: The Rehnquist Court and the Commerce Clause
Enumerated Powers Act
The Enumerated Powers ActEnumerated Powers Act
The Enumerated Powers Act is a proposed bill in the United States House of Representatives which requires legislation passed by Congress cite those provisions of the Constitution that give them the power to pass such legislation. The bill has been proposed by Congressman John Shadegg in every...
is a proposed law that would require all bills introduced in the U.S. Congress to include a statement setting forth the specific constitutional authority under which each bill is being enacted. In every Congress since the 104th Congress
104th United States Congress
The One Hundred Fourth United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1995 to January 3, 1997, during the third and...
, U.S. Congressman John Shadegg
John Shadegg
John Barden Shadegg is the former U.S. Representative for , serving from 1995 until 2011. He is a member of the Republican Party.The district, numbered as the 4th District before the 2000 Census, includes much of northern Phoenix....
has introduced the Enumerated Powers Act, although it has not been passed into law. At the beginning of the 105th Congress
105th United States Congress
The One Hundred Fifth United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1997 to January 3, 1999, during the fifth and...
, the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
incorporated the substantive requirement of the Enumerated Powers Act into the House rules.
See also
- New federalismNew FederalismNew Federalism is a political philosophy of devolution, or the transfer of certain powers from the United States federal government back to the states...
- OriginalismOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
- Strict constructionismStrict constructionismIn the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
- Constitution in exileConstitution in exileConstitution in Exile is a controversial term that refers to the situation resulting from provisions of the United States Constitution allegedly not having been enforced according to their "original intent" or "original meaning"...
- Compact theoryCompact theoryCompact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...
External links
- Constitutional Studies, 10th Amendment, Enumerated powers from the Cato InstituteCato InstituteThe Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
- Annotations on enumerated powers from FindLawFindLawFindLaw is a business of Thomson Reuters that provides online legal information and online marketing services for law firms. FindLaw was created by Stacy Stern, Martin Roscheisen and Tim Stanley in 1995, and was acquired by Thomson West in 2001....
- Text of the Enumerated Powers Act
- Committees on Enumerated Powers: How Congress Can Revive the Constitution from the Center for Constitutional Studies