The
enumerated powers are a list of specific responsibilities found in
Article 1Article One of the United States Constitution describes the powers of the legislative branch of the federal government - the Congress.The Article provides that Congress consists of a House of Representatives and the Senate, establishes the manner of election and qualifications of members of each...
Section 8 of the
United States ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
, which iterates the authority granted to the
United States CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
. Congress may exercise only those powers that are granted to it by the Constitution, limited by the
Bill of RightsIn the United States, the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known. They were introduced by James Madison to the First United States Congress in 1789 as a series of articles, and came into effect on December 15, 1791, when they had...
and the other protections found in the Constitutional text.
The classical statement of a government of enumerated powers is that by
Chief JusticeThe 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...
MarshallJohn Marshall was an American statesman and jurist who shaped American constitutional law and made the Supreme Court a center of power. Marshall was Chief Justice of the United States, serving from February 4, 1801, until his death in 1835...
in
McCulloch v. MarylandMcCulloch 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. Though the law, by its language,...
:
This government is acknowledged by all, to be one of enumerated powers.
The
enumerated powers are a list of specific responsibilities found in
Article 1Article One of the United States Constitution describes the powers of the legislative branch of the federal government - the Congress.The Article provides that Congress consists of a House of Representatives and the Senate, establishes the manner of election and qualifications of members of each...
Section 8 of the
United States ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
, which iterates the authority granted to the
United States CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
. Congress may exercise only those powers that are granted to it by the Constitution, limited by the
Bill of RightsIn the United States, the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known. They were introduced by James Madison to the First United States Congress in 1789 as a series of articles, and came into effect on December 15, 1791, when they had...
and the other protections found in the Constitutional text.
The classical statement of a government of enumerated powers is that by
Chief JusticeThe 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...
MarshallJohn Marshall was an American statesman and jurist who shaped American constitutional law and made the Supreme Court a center of power. Marshall was Chief Justice of the United States, serving from February 4, 1801, until his death in 1835...
in
McCulloch v. MarylandMcCulloch 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. Though the law, by its language,...
:
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.
Powers and limitations
On the one hand, strict Constitutionalists believe that Congress's power should be limited to only those duties listed in the Constitution. All other powers should be vested to the people and the state governments. On the other hand, more liberal interpreters of the constitution allow for powers more tangential to those duties. Many individuals cite the Necessary and Proper and the Commerce clause as grounds for their argument. Many conservatives cite the
Tenth AmendmentThe Tenth Amendment of the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
as grounds for their arguments. However, over time the overall trend has seen more power shifting to the Congress. This can be noted especially after the
Great DepressionThe Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
, when U.S. federal government
New DealThe New Deal was the name that United States President Franklin D. Roosevelt gave to his complex package of economic programs 1933-36 with the goals of what historians call the 3 Rs, of giving Relief to the unemployed and badly hurt farmers, Reform of business and financial practices, and promoting...
programs imposed strict regulations on the economy.
Necessary and Proper Clause
Interpretation of the Necessary and Proper Clause has been controversial especially during the early years of the republic.
Strict constructionistsStrict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. In the United States the phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
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, feel that the Necessary and Proper Clause expands 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 elastic clause has been paired with the
commerce clauseThe Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress has the power to regulate commerce with foreign nations, among the states, and with the Native American tribes...
in particular to provide the constitutional basis for a wide variety of expansive federal laws.
Recent case law
The
case of
United States v. LopezUnited States v. Lopez, was the first United States Supreme Court case since the Great Depression 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 RehnquistWilliam Hubbs Rehnquist was an American lawyer, jurist, and a political figure who served as an Associate Justice on the Supreme Court of the United States and later as the Chief Justice of the United States. Considered a conservative, Rehnquist favored a federalism under which the states...
wrote, "We start with
first principlesIn philosophy, a first principle is a basic, foundational proposition or assumption that cannot be deduced from any other proposition or assumption...
. The Constitution creates a
Federal GovernmentA federal government is the common government of a federation.The structure of federal governments vary 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 govern...
of enumerated powers." For the first time in sixty years, the Court found a federal statute to have exceeded the commerce power of Congress.
- For more details see: The Rehnquist Court and the Commerce Clause
Enumerated Powers Act
The
Enumerated Powers ActThe 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 the law is being enacted. In every Congress since the
104th CongressThe 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 ShadeggJohn Barden Shadegg , American politician, has been a Republican member of the United States House of Representatives since 1995, representing . The district, numbered as the 4th District before the 2000 Census, includes much of northern Phoenix.-Personal life:Shadegg is the son of Steve Shadegg...
has introduced the Enumerated Powers Act, although it has not been passed into law. At the beginning of the
105th CongressThe 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 RepresentativesThe United States House of Representatives, commonly referred to as the "House," is the lower house of the bicameral United States Congress, the upper house being the United States Senate. The composition and powers of the House and the Senate are established in Article One of the Constitution...
incorporated the substantive requirement of the Enumerated Powers Act into the House rules.
See also
- New federalism
New Federalism is a political philosophy of devolution, or of transfer of certain powers from the United States federal government to the U.S. states...
- Originalism
In the context of United States constitutional interpretation, originalism is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting. A neologism, "originalism" is a formalist theory...
- Strict constructionism
Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. In the United States 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 exile
The Constitution 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 theory
Compact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:In regards to the Constitution of the United States of America, it claims that the nation was formed through a compact agreed upon by all the states, and that the national...
External links