Con Law IEnumerated Powers and McCulloch

A Government of Enumerated Powers

Congress has only the powers the Constitution grants; most are in Article I, Section 8, and others in amendments' enforcement clauses; the Tenth Amendment confirms that other powers are reserved to the states or the people, and there is no general federal police power.

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You read Article I in Civics and Government and saw federalism in Federalism Basics. Constitutional law starts every question about Congress with one premise: the national government has only the powers the Constitution grants. Article I begins, "All legislative Powers herein granted shall be vested in a Congress." The states, by contrast, have a general police power: the power to make laws for health, safety, morals and welfare without pointing to a list.

Article I, Section 8 lists most of Congress's powers: taxing and spending (clause 1), borrowing, commerce (clause 3), naturalization, coinage, post offices, patents, war, armies and navies, and the Necessary and Proper Clause (clause 18).

Why it works

Why a list? The framers wanted a national government strong enough to do what the Articles of Confederation could not, such as tax, regulate trade among the states and raise an army, but no stronger. A list does both jobs: it grants real powers and, by naming them, implies that others were not granted. Madison put it this way in Federalist No. 45: "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Tenth Amendment (1791) confirms the design: powers not delegated "are reserved to the States respectively, or to the people."

Key idea

Congress has only enumerated powers: mainly those in Article I, Section 8, plus the enforcement clauses of later amendments (the Thirteenth, Fourteenth, Fifteenth and others). There is no general federal police power. Every federal law must trace to a granted power.
Where Congress's powers come from.
SourceExamples
Article I, Section 8Tax and spend for the general welfare; regulate commerce; coin money; declare war; raise armies; Necessary and Proper Clause
Other articlesArticle IV: admit states, govern territory and federal property; Article V: propose amendments
Amendment enforcement clausesThirteenth, Fourteenth and Fifteenth (1865–1870), Nineteenth, Twenty-third, Twenty-fourth, Twenty-sixth: "Congress shall have power to enforce this article by appropriate legislation"

Worked example: Tracing a law to a power

Congress passes a law setting safety standards for trucks that cross state lines. Which power supports it?
  1. Ask: what does the law regulate? Vehicles moving in interstate commerce.
  2. Find the grant: Article I, Section 8, Clause 3, "To regulate Commerce … among the several States."
  3. If the law needs supporting rules (inspections, records), the Necessary and Proper Clause covers those means.

Answer: The Commerce Clause, with the Necessary and Proper Clause for the means.

Worked example: No police power

Could Congress pass a general law setting the age at which anyone in the country may marry, with no link to commerce, taxing, spending or any other granted power?
  1. Look for an enumerated power. Marriage age, by itself, is not on the list.
  2. States regulate marriage under their police power.
  3. Without a hook to a granted power, a federal law would have no constitutional basis.

Answer: No, not as a freestanding regulation. Congress would need a granted power, for example attaching conditions to federal grants under the spending power, which has its own limits (Conditions on Federal Money).

Common mistake

Reading the General Welfare Clause as a power to do anything for the general welfare. Article I, Section 8, Clause 1 is a power "To lay and collect Taxes … to pay the Debts and provide for the common Defence and general Welfare." It is a power to tax and spend for those purposes, not a general power to regulate. Madison answered this very misreading in Federalist No. 41, calling it a "misconstruction." Check: does the law spend money, or does it command people? Commands need another power.

The ratification debate turned on this list. Anti-Federalists such as Brutus argued that the taxing power, read with the General Welfare and Necessary and Proper Clauses, had no real limit; the Federal Farmer feared a consolidated government. Federalists answered with Federalist No. 45 and Federalist No. 33. See both sides on the ratification debate page. The next lesson shows how the Supreme Court first read the list in McCulloch v. Maryland.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 2 XP.

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