Enumerated Powers of the Federal Congress
Article 1, Section 8 of the United States Constitution, lists the powers of the federal Congress. This list of federal legislative authority is what is known as the Enumerated Powers of Congress. The United States Constitution is essentially a partnership agreement between the states that created the federal government as an agent of the people and the states. The Constitution created this agent, the federal government, and carefully listed, in its entirety, the scope of power delegated to the federal government’s legislative branch. A law passed by Congress is Constitutional only if the law was passed pursuant to one of the Enumerated Powers. If a federal law falls outside the scope of the Enumerated Powers, then the law is unconstitutional.
Most Americans today have never heard of the Enumerated Powers of Article 1, Section 8. Americans today live in the world of Obamacare, Social Security, Medicare, federal regulation of toilets, the War on Drugs, etc… Americans today generally believe Congress has virtually unlimited legislative authority under the Constitution. From the standpoint of raw political power, this is true. However, from the standpoint of the Constitution, this could not be further from the truth. The problem is, as House Speaker Nancy Pelosi’s reaction in the video below indicates, federal politicians refuse to acknowledge any limits on their power. In addition, several important parts of the Constitution have been amended (pursuant to Article 5) to eliminate structural checks on federal power, such as the Seventeenth Amendment.
Logic of the Enumerated Powers
The Constitution’s logic is embarrassingly simple: All legislative powers not listed in Article 1, Section 8, or anywhere else in Article 1 of the Constitution, are reserved to the states under their own constitutions, respectively, or to the people of each state. This was the most important, implicit principle underlying the Constitution. This principle was so important the states demanded a “State Sovereignty” amendment be passed to make this principle explicit. This principle was made explicit with the ratification of the Tenth Amendment, which Thomas Jefferson referred to as the “cornerstone” of the Constitution.
Under this system of “dual sovereignty“, also known as Federalism, power is vested at the state and local level (with the people, in theory)—according with the principle that “governments derive their just powers from the consent of the governed.” The states (or the people of each state) respectively entered into a voluntary agreement whereby certain powers were delegated to the federal government. This system allows for one united (national) policy with respect to foreign affairs and other specific matters enumerated in Article 1, Section 8, but it allows for diversity of self-governance at the state and local level. For example, should abortion be legal or illegal in a state? Should drugs like marijuana or cocaine be legal or illegal? What should the speed limit be? People will differ in their views on these issues. As such, the federal system allows the states to deal with these issues in accordance with the views of the people who live within these separate political jurisdictions (i.e., states). By contrast, when the federal government assumes power over a matter, one uniform law or policy is imposed upon the entire country. Thankfully, the Enumerated Powers of Article 1 Section 8 clearly articulate the scope of federal legislative power. The question becomes, what are these Enumerated Powers and how broad are these grants of authority?
Most of the Enumerated Powers are fairly straightforward. To view the Enumerated Powers, see the bottom section of this page. The following sub-pages focus on the three main clauses that have been misconstrued as open-ended grants of federal power: The General Welfare Clause, The Commerce Clause and The Necessary and Proper Clause.
Federal Government’s View of the Enumerated Powers
Federal judges and politicians today do not abide by the Enumerated Powers. The video, below, generally sums up the attitude possessed by members of Congress, the President and the nine politically-connected lawyers on the Supreme Court.
United States Constitution, Article 1, Section 8
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
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, dockyards, 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.