Enumerated Powers of the U.S. Constitution
Instead of a totally unified central government with all legislative power, the U.S. Constitution created a federalist system with power divided between the national government and the states. Unlike the governments of most other countries, therefore, the United States has a national government of limited or “enumerated” powers. Congress can exercise only powers granted it by the Constitution, mostly in Article I, Section 8. Examples among the eighteen powers listed there include the power regulate immigration and naturalization, coin money and regulate the currency, establish post offices, and grant patents and copyrights to promote science and the arts. Also listed, however, are the powers of Congress to tax in order to “pay the Debts and provide for the common Defense and general Welfare of the United States,” to regulate interstate and foreign commerce, and to declare war and raise and regulate military forces. These powers are so broad and basic that they have proved very difficult to confine. In addition, Congress has the power to “make all laws which shall be necessary and proper” for executing its specified powers, which is considered a grant of “implied powers.” These powers have been so broadly interpreted by Congress, the president, and the Supreme Court that as a practical matter there is very little, if anything, today that Congress cannot regulate if it is determined to do so.
|ARTICLE I, SECTION 8|
|Clause 1: 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;|
|Clause 2: To borrow Money on the credit of the United States;|
|Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;|
|Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;|
|Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;|
|Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;|
|Clause 7: To establish Post Offices and post Roads;|
|Clause 8: 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;|
|Clause 9: To constitute Tribunals inferior to the supreme Court;|
|Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;|
|Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;|
|Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;|
|Clause 13: To provide and maintain a Navy;|
|Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;|
|Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;|
|Clause 16: 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;|
|Clause 17: 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|
|Clause 18: 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.|
The power to tax, for example, enables Congress to raise almost unlimited amounts of money and effectively control the nation’s resources. Congress can then use this money, in the form of conditional grants to the states, to induce the states to enact laws that Congress is not authorized to enact itself. Congress, for example, clearly has no power to regulate the minimum age for the purchase or consumption of alcoholic beverages. Congress has nonetheless effectively set a national minimum drinking age of 21. It was able to do this by simply making it a condition of the grant of highway funds to the states that the states exercise their power to enact the drinking age desired by Congress. Congress can discourage or even effectively prohibit almost any activity, for example, gambling, or product, for example, sawed-off shotguns, by simply placing a high enough tax on it.
Congress’s power to regulate interstate commerce has similarly proven to be a means of enabling Congress to regulate almost anything. The power to regulate interstate commerce, the Supreme Court has held, includes the power to regulate things that “affect” interstate commerce, and almost everything, it turns out, affects interstate commerce. Congress has no power, for example, to directly regulate labor relations. But labor relations can affect production and production affects sales, and sales affect interstate commerce. Congress, therefore, can and has created rights of employees to form unions and has set a national minimum wage, all as an exercise of its power to regulate interstate commerce. Congress can prohibit a farmer from growing wheat for his or her own use, the Supreme Court has held, because that forces the farmer to buy the wheat he or she needs, which affects the demand for wheat, which affects the price and therefore sales in interstate commerce.
The power to regulate interstate commerce includes the power to prohibit or place conditions upon the movement of goods or people from state to state. Thus, although Congress has no direct power to regulate in the interest, for example, of health and safety—that is clearly a power (often called the “police power”) left exclusively for the states—Congress has passed the Pure Food and Drug Act (1906), prohibiting the interstate shipment of adulterated foods or mislabeled drugs, and it prohibits the interstate shipment of automobiles without seat belts. Congress cannot make kidnapping a federal crime, but it can make it a federal crime to carry a kidnapped person across a state line.
The result is that American federalism has become, to a large extent, not a real limit on Congress’s power but in effect simply a requirement that Congress do indirectly what it cannot do directly. The reason for this is that although it appears that the American people strongly favor the concept of federalism—limited national power with most matters of domestic social policy left to the states—as an ideal, they also usually favor, inconsistently, a national government able to deal with whatever is seen as a general and widespread problem. Federalism, therefore, almost always gives way to insistent demands for national action on some matter of current concern, even though it might seem to be a local issue—for example, the humane treatment of animals—and the result is a national government of practically unlimited power.
Raoul Berger, Federalism: The Founder’s Design (Norman: University of Oklahoma Press, 1987); Lino A. Graglia, “United States v. Lopez: Judicial Review under the Commerce Clause,” Texas Law Review 74 (1996): 719; and Michael W. Mc- Connell, “Federalism: Evaluating the Framers Design,” University of Chicago Law Review 54 (1987): 1484.
Lino A. Graglia
Last updated: 2006