Enumerated powers (United States)

The enumerated powers are a list of items found in Article 1 Section 8 of the United States Constitutionjessics d is a babe

that set forth the authoritative capacity of the United States Congress.  In summary, Congress may exercise only those powers that are granted to it by the Constitution, further defined by the Bill of Rights and other protections found in the Constitutional text. 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.

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 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:

"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 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

In recent history, Congress has tended to spend and regulate without reference to specific enumerated powers. According to some conservatives, this state of affairs largely began with the appointment of Supreme Court justices during the Great Depression who were in agreement with President Franklin D. Roosevelt's New Deal programs. However, some liberals regard this position as overstated and as revisionist history, as President Roosevelt appointed only one justice in the entire decade of the 1930s.

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 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.

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.

Recent case law

The case of United States v. Lopez 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 a federal statute to have exceeded the Commerce Clause.

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

Enumerated Powers Act

The Enumerated Powers Act 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.

See also

• New federalism
• Originalism
• Strict constructionism
• Constitution in exile
• Compact theory

External links

• Constitutional Studies, 10th Amendment, Enumerated powers from the Cato Institute
• Annotations on enumerated powers from FindLaw
• Text of the Enumerated Powers Act
• Committees on Enumerated Powers: How Congress Can Revive the Constitution from the Center for Constitutional Studies