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Enumerated powers

The enumerated powers are a list of items found in Article I, Section 8 of the U.S. Constitution that set forth the authority of Congress.[1] In summary, Congress may exercise the powers that the Constitution grants it, subject to the individual rights listed in the Bill of Rights. Moreover, the Constitution expresses various other limitations on Congress, such as the one expressed by the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Historically, Congress and the Supreme Court have broadly interpreted the enumerated powers, especially by deriving many implied powers from them.[2] The enumerated powers listed in Article One include both exclusive federal powers, as well as concurrent powers that are shared with the states, and all of those powers are to be contrasted with reserved powers that only the states possess.[3][4]


  • List of enumerated powers 1
  • Political interpretation 2
  • Necessary and Proper Clause 3
    • McCulloch v. Maryland 3.1
  • Recent case law 4
  • Enumerated Powers Act 5
    • Tea Party support 5.1
  • See also 6
  • References 7
  • External links 8

List of enumerated powers

The Congress shall have Power 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.

Several amendments explicitly grant Congress additional powers. For example, the Sixteenth Amendment grants the power to "lay and collect taxes on incomes, from whatever source derived." This statement about the Sixteenth Amendment basically quotes the amendment but opens the door for an erroneous understanding of the purpose of the amendment. The Supreme Court specifically states that the Sixteenth Amendment provided Congress with no new taxing powers. ". . . The provisions of the Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged . . ." Stanton v. Baltic Mining Co., 240 U.S. 103, 112-13 (1916),

Political interpretation

There are differences of opinion on whether current interpretation of enumerated powers as exercised by Congress is constitutionally sound.

One school of thought is called strict constructionism. Strict constructionists refer to a statement on the enumerated powers by Chief Justice Marshall in the case McCulloch v. Maryland:[5]

"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."[5]

Another school of thought is referred to as loose construction. They often refer to different 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.[5]

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.[6]

McCulloch v. Maryland

The defining example of the Necessary and Proper Clause in U.S. history was McCulloch v. Maryland in 1819. The United States Constitution says nothing about establishing a national bank. The U.S. government established a national bank that provided part of the government's initial capital. In 1819 the federal government opened 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. James William McCulloch, a cashier at the bank, refused to pay the tax. Eventually the case was heard before the U.S. Supreme Court. Chief Justice John 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.[7]

Recent case law

The case of United States v. Lopez[8] in 1997 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.[9]

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

In National Federation of Independent Business v. Sebelius,[10] the Supreme Court held that the Commerce Clause did not give Congress the authority to require individuals to purchase health insurance. However, since the court ruled that Congress's taxing authority was sufficient to enact the mandate, some constitutional lawyers have argued that the commerce clause discussion should be treated as judicial dictum[11] .[12] Chief Justice John Roberts, in his majority opinion, stated that:

[T]he statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.[10]

No other justice joined this segment of the Chief Justice's opinion.

Enumerated Powers Act

The Enumerated Powers Act[13] 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.[14]

Tea Party support

The Enumerated Powers Act is supported by leaders of the U.S. Tea Party movement. National Tea Party leader Michael Johns has said that progressives often "see the Constitution as an impediment to their statist agenda. In almost all cases, though, there is very little thought or dialogue given to what should be the first and foremost question asked with every legislative or administrative governmental action: Is this initiative empowered to our federal government by the document's seven articles and 27 amendments? In many, many cases, the answer is no." "For this reason," Johns said, "we also strongly support the Enumerated Powers Act, which will require Congress to justify the Constitutional authority upon which all legislation is based."[15]

See also


  1. ^ U.S. Constitution Online
  2. ^ Exploring Constitutional Conflicts, UMKC
  3. ^ Gardbaum, Stephen. "Congress's Power to Pre-Empt the States", Pepperdine Law Review, Vol. 33, p. 39 (2005).
  4. ^ Bardes, Barbara et al. American Government and Politics Today: The Essentials (Cengage Learning, 2008).
  5. ^ a b c McCulloch v. Maryland, 17 US 316 (S.Ct. 1819-03-06).
  6. ^ UMKC "The Necessary and Proper Clause"
  7. ^ Schmidt, Barbara A. Bardes, Mack C. Shelley, Steffen W. American government and politics today : the essentials, 2011-2012 (2011-2012 ed. ed.). Boston, MA: Wadsworth, Cengage Learning.  
  8. ^ 514 U.S. 549
  9. ^ United States v. Lopez - Significance, Court Of Appeals Ruling, Supreme Court Ruling, Implications, Related Cases, Further Readings
  10. ^ a b National Federation of Independent Business v. Sebelius, 567 US ___ (S.Ct. 2012-06-28).
  11. ^ Schwinn, Steven D. (2012-06-29), Did Chief Justice Roberts Craft a New, More Limited Commerce Clause? 
  12. ^ Zadorozny, George (2012-07-11), Dicta in the NFIB v. Sebelius (Obamacare) Decision 
  13. ^ H.R. 2458
  14. ^ John Shadegg
  15. ^ "Interview with National Tea Party Founder and Leader Michael Johns",

External links

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