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The enumerated powers (also called expressed powers, explicit powers or delegated powers) of the
United States Congress The United States Congress is the legislature of the federal government of the United States. It is Bicameralism, bicameral, composed of a lower body, the United States House of Representatives, House of Representatives, and an upper body, ...
are the powers granted to the
federal government of the United States The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a fede ...
by the
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
. Most of these powers are listed in Article I, Section 8. In summary, Congress may exercise the powers that the Constitution grants it, subject to the individual rights listed in the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
. 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 A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
have broadly interpreted the enumerated powers, especially by deriving many
implied powers In the United States, implied powers are powers that, although not directly stated in the Constitution, are implied to be available based on previously stated powers. History When George Washington asked Alexander Hamilton to defend the constituti ...
from them. The enumerated powers listed in Article One include both
exclusive federal powers Exclusive federal powers are powers within a federal system of government that each constituent political unit (such as a state or province) is absolutely or conditionally prohibited from exercising.Scardino, Frank. The Complete Idiot's Guide to ...
, as well as
concurrent powers Concurrent powers are powers of a federal state A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal governm ...
that are shared with the states, and all of those powers are to be contrasted with
reserved powers Reserved powers, residual powers, or residuary powers are the powers that are neither prohibited nor explicitly given by law to any organ of government. Such powers, as well as general power of competence, are given because it is impractical to d ...
that only the states possess.


List of enumerated powers of the federal constitution

Article I, Section 8 of the United States Constitution: Article III, Section 3 of the United States Constitution: Article IV, Section 3 of the United States Constitution: Amendment XVI of the United States Constitution: Amendment XX, Section 4 of the United States Constitution: Additionally, a number of amendments include a
Congressional power of enforcement A Congressional power of enforcement is included in a number of amendments to the United States Constitution. The language "''The Congress shall have power to enforce this article by appropriate legislation''" is used, with slight variations, in A ...
in which the language "''The
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
shall have power to enforce this article by appropriate legislation''" is used with slight variations, granting to Congress the power to enforce the following amendments: * Amendment XIII of the United States Constitution * Amendment XIV of the United States Constitution * Amendment XV of the United States Constitution * Amendment XIX of the United States Constitution * Amendment XXIII of the United States Constitution * Amendment XXIV of the United States Constitution * Amendment XXVI of the United States Constitution


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 In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution). Strict sense of the term ...
. Strict constructionists refer to a statement on the enumerated powers by Chief Justice
Marshall Marshall may refer to: Places Australia * Marshall, Victoria, a suburb of Geelong, Victoria Canada * Marshall, Saskatchewan * The Marshall, a mountain in British Columbia Liberia * Marshall, Liberia Marshall Islands * Marshall Islands, an i ...
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 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.


Necessary and Proper Clause

Interpretation of the
Necessary and Proper Clause The Necessary and Proper Clause, also known as the Elastic Clause, is a clause in Article I, Section 8 of the United States Constitution: Since the landmark decision '' McCulloch v. Maryland'', the US Supreme Court has ruled that this clause g ...
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, believe it is largely up to Congress and not the courts to determine what means are "necessary and proper" in executing 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 The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
in particular to provide the constitutional basis for a wide variety of federal laws.


''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 Baltimore ( , locally: or ) is the most populous city in the U.S. state of Maryland, fourth most populous city in the Mid-Atlantic, and the 30th most populous city in the United States with a population of 585,708 in 2020. Baltimore was ...
, 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 John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
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.


Case law

The case of '' United States v. Lopez'' in 1995 held
unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
the Gun Free School Zone Act because it exceeded the power of Congress to "regulate commerce...among the several states". Chief Justice
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
wrote, "We start with
first principles In philosophy and science, a first principle is a basic proposition or assumption that cannot be deduced from any other proposition or assumption. First principles in philosophy are from First Cause attitudes and taught by Aristotelians, and nua ...
. The Constitution creates a
Federal Government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government ( federalism). In a federation, the self-gover ...
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. In ''
National Federation of Independent Business v. Sebelius ''National Federation of Independent Business v. Sebelius'', 567 U.S. 519 (2012), was a List of landmark court decisions in the United States, landmark United States Supreme Court decision in which the Court upheld Congress's power to enact most ...
'', the Supreme Court held that the Commerce Clause did not give Congress the authority to require individuals to purchase
health insurance Health insurance or medical insurance (also known as medical aid in South Africa) is a type of insurance that covers the whole or a part of the risk of a person incurring medical expenses. As with other types of insurance, risk is shared among m ...
. 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''. Chief Justice
John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including '' Nat ...
, in his majority opinion, stated that: : e 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. No other justice joined this segment of the Chief Justice's opinion.


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. From the 104th Congress to the
111th Congress The 111th United States Congress was a meeting of the legislative branch of the United States federal government from January 3, 2009, until January 3, 2011. It began during the last weeks of the George W. Bush administration, with th ...
, U.S. Congressman
John Shadegg John Barden Shadegg (; born October 22, 1949) is an American politician and former U.S. Representative for , serving from 1995 until 2011. He is a member of the Republican Party. The district, numbered as the 4th District before the 2000 Censu ...
introduced the Enumerated Powers Act, although it has not been passed into law. At the beginning of the
105th Congress The 105th 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, ...
, the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
incorporated the substantive requirement of the Enumerated Powers Act into the House rules.


Tea Party support

The Enumerated Powers Act is supported by leaders of the U.S.
Tea Party movement The Tea Party movement was an American fiscally conservative political movement within the Republican Party that began in 2009. Members of the movement called for lower taxes and for a reduction of the national debt and federal budget def ...
. 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 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."


See also

*
Compact theory In United States constitutional theory, compact theory is an interpretation of the Constitution which holds that the United States was formed through a compact agreed upon by all the states, and that the federal government is thus a creation of t ...
* Constitution in exile * New federalism *
Originalism In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
*
States' rights In American political discourse, states' rights are political powers held for the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the ...
*
Strict constructionism In the United States, strict constructionism is a particular legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution). Strict sense of the term ...


References


External links


Annotations on enumerated powers
from
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{{DEFAULTSORT:Enumerated Powers Federalism in the United States Legal history of the United States Article One of the United States Constitution United States constitutional law de:Gesetzgebung#Geschriebene Bundeskompetenzen