The Enumerated Powers of Congress are found in the 18 clauses that make up Article I, Section 8 of the Constitution of the United States. The first seventeen clauses list the legislative powers that are expressly delegated to Congress by the people. These are the issues that we allow Congress to legislate upon.
Many Americans believe that the federal government has the power to regulate on matters such as health, education, welfare, unemployment and retirement insurance, etc.. This is simply not true, however; because, according to the 10th Amendment, all powers not granted to Congress remain vested in the states or the people.
Programs and departments which have expanded government - like the various departments of health, education, welfare (etc.) which have existed over the years - have become part of our government, despite the fact that Congress is supposed to have nothing to do with those issues.
These programs and departments have, for the most part, become part of our government, through unconstitutional acts of Congress, which the Supreme Court negligently failed to identify as unconstitutional. Several unconstitutional federal departments exist because the president at the time abused his "presidential reorganizational authority" to organize his cabinet, so as to pretend that he had the authority to "re-organize" whole industries and issues into the executive department.
Neither the General Welfare Clause (Clause 1), nor the Interstate Commerce Clause (Clause 3), nor the Necessary and Proper Clause (Clause 18) permit regulation by Congress of issues not explicitly enumerated (that is, listed or named) in Article I, Section 8. Nor does Clause 17 permit the federal government to own and manage anywhere near the amount of land it currently owns. Nor do Amendments XI through XXVII of the Constitution. Nor do the "unenumerated rights" recognized in Amendment IX, denote the existence of unenumerated authorities given to the government; that's actually the exact opposite of what the 9th Amendment really means.
The supposed needs to "promote the general welfare", "regulate interstate commerce", and do whatever is "necessary and proper", have all been used as convenient excuses to grow the government, based on intentional misreadings of the law.
The "general welfare" doesn't mean "whatever benefits anybody in the country"; it refers to the idea that taxes and spending should be done for the benefit of well-being of all people in the country, which requires indirect taxes to be equally apportioned and direct taxes to be uniform.
The need to "regulate interstate commerce" should not be construed to imply that the federal government may legislate on any and all matters pertaining to interstate commerce which it desires; Clause 3 only permits the Congress to keep commerce regular, meaning free from undue and unwarranted interruptions in the free flow of commerce. In fact, the federal government itself has usually been the major cause of that interruption; either through intervening in commercial affairs which pertain to solely the state itself and nobody else, or through refusing to crack down on states that give their businesses unfair advantages. by taxing their residents to subsidize their own in-state domestic commerce (and labor, jobs, and production) over the commerce of other states. This allows a states to ignore the need to maintain America's interstate free trade compact, for the purpose of giving the state permanent rewards in the market, and increasing monopolization of the industries within it.
The Necessary and Proper Clause was never intended to allow the federal government to do whatever it wanted to do. Its purpose is do authorize the federal government to do what is necessary and proper to execute "the foregoing powers", meaning the powers previously listed in Clauses 1 through 17. Clauses 17 and 18 don't say the federal government can take over whatever lands and buildings it needs in order to do whatever it wants; they say that the federal government only has exclusive jurisdiction over a territory less than 100 miles square, that it must purchase whatever lands it owns (and Amendment V says it must compensate owners fairly), and that the government should use whatever resources it requires, only to execute the powers vested in it under Clauses 1 through 17.
This may be a narrow interpretation of the Constitution, but it is probably a correct one. [Note: Admittedly, I have neglected to mention several important duties of Congress which are distinct from the "4 M's, 3 T's, and 2 P's" listed below; such as trying cases of treason, trying impeachments, admitting new states to the union, and establishing election days. It is worthwhile to note that the Enumerated Powers authorize Congress to do closer to thirty-five things, rather than 17 or 18.]. This narrow interpretation of the Constitution may not "allow the federal government to do much", but that is the point.
We have an amendment process for a reason; so that we can change the Constitution easily, but not too easily. We are not supposed to change the Constitution for "light and transient causes". It is no use begging for a vote on an unconstitutional matter, or spending a decade and trillions of dollars on unconstitutional legislation, when those efforts will eventually and inevitably be overturned by courts, vetoed by governors, or ignored by presidents.
Strictly limiting Congress is the only way to prevent new departments from being ushered into existence in the federal government, where they can easily be taken advantage of, and perverted away from their original intentions, by administrations that either don't think the federal government should be involved in such matters, or (worse yet) by administrations that have an active disregard for the harmful activity that the department is supposed to be regulating. The George W. Bush Administration's, and Donald Trump Administration's, actions, concerning the Environmental Protection Agency, perhaps demonstrate this idea best.
The "general welfare" doesn't mean "whatever benefits anybody in the country"; it refers to the idea that taxes and spending should be done for the benefit of well-being of all people in the country, which requires indirect taxes to be equally apportioned and direct taxes to be uniform.
The need to "regulate interstate commerce" should not be construed to imply that the federal government may legislate on any and all matters pertaining to interstate commerce which it desires; Clause 3 only permits the Congress to keep commerce regular, meaning free from undue and unwarranted interruptions in the free flow of commerce. In fact, the federal government itself has usually been the major cause of that interruption; either through intervening in commercial affairs which pertain to solely the state itself and nobody else, or through refusing to crack down on states that give their businesses unfair advantages. by taxing their residents to subsidize their own in-state domestic commerce (and labor, jobs, and production) over the commerce of other states. This allows a states to ignore the need to maintain America's interstate free trade compact, for the purpose of giving the state permanent rewards in the market, and increasing monopolization of the industries within it.
The Necessary and Proper Clause was never intended to allow the federal government to do whatever it wanted to do. Its purpose is do authorize the federal government to do what is necessary and proper to execute "the foregoing powers", meaning the powers previously listed in Clauses 1 through 17. Clauses 17 and 18 don't say the federal government can take over whatever lands and buildings it needs in order to do whatever it wants; they say that the federal government only has exclusive jurisdiction over a territory less than 100 miles square, that it must purchase whatever lands it owns (and Amendment V says it must compensate owners fairly), and that the government should use whatever resources it requires, only to execute the powers vested in it under Clauses 1 through 17.
This may be a narrow interpretation of the Constitution, but it is probably a correct one. [Note: Admittedly, I have neglected to mention several important duties of Congress which are distinct from the "4 M's, 3 T's, and 2 P's" listed below; such as trying cases of treason, trying impeachments, admitting new states to the union, and establishing election days. It is worthwhile to note that the Enumerated Powers authorize Congress to do closer to thirty-five things, rather than 17 or 18.]. This narrow interpretation of the Constitution may not "allow the federal government to do much", but that is the point.
We have an amendment process for a reason; so that we can change the Constitution easily, but not too easily. We are not supposed to change the Constitution for "light and transient causes". It is no use begging for a vote on an unconstitutional matter, or spending a decade and trillions of dollars on unconstitutional legislation, when those efforts will eventually and inevitably be overturned by courts, vetoed by governors, or ignored by presidents.
Strictly limiting Congress is the only way to prevent new departments from being ushered into existence in the federal government, where they can easily be taken advantage of, and perverted away from their original intentions, by administrations that either don't think the federal government should be involved in such matters, or (worse yet) by administrations that have an active disregard for the harmful activity that the department is supposed to be regulating. The George W. Bush Administration's, and Donald Trump Administration's, actions, concerning the Environmental Protection Agency, perhaps demonstrate this idea best.
The fact that an issue or power is specifically listed in one of the clauses in Article I, Section 8, does not necessarily mean that the federal government is authorized to wield an exclusive monopoly over providing the service in question, nor does it necessarily mean that the federal government is authorized to legislate concerning any and all topics vaguely related to that issue.
The states and the people, in most or all cases (save for the specific mention of exclusive jurisdiction over federal lands in Clause 17), still retain authority to legislate concerning the parts of the issues mentioned which are not specifically described in the language of the law.
The states and the people, in most or all cases (save for the specific mention of exclusive jurisdiction over federal lands in Clause 17), still retain authority to legislate concerning the parts of the issues mentioned which are not specifically described in the language of the law.
For example, the authority to "establish Post Roads" does not, by itself, confer a legal monopoly over the delivery of postal mail; a later Supreme Court decision did that. Also, the power to "establish a uniform rule of naturalization" is arguably the Congress's only immigration-related power. It doesn't specifically say in the Constitution that the federal government has the right to decide where immigrants settle, nor whether they can be eligible for social services.
The federal government will not have those authorities until the amendment process is utilized, to properly authorize the government to do such things.
Even though the set of issues which the Congress can regulate, is narrow, there is still a total of seventeen separate clauses which explain what the Congress is allowed to do. Since it can be difficult to remember all seventeen clauses, here are my suggestions about what I think is the best way to memorize and simplify those seventeen things.
When attempting to teach or memorize the Enumerated Powers, I suggest that the clauses be separated into three main categories: 1) Topics beginning with the letter M; 2) topics beginning with the letter T; and 3) topics beginning with the letter P (and, additionally, a fourth category, consisting of the final two clauses).
In teaching the Enumerated Powers in this manner, the contents of the first sixteen clauses should be referred to as "the four M's, the three T's, and the two P's":
The Four M's:
Military, Money, Mail, and Migration
- Clauses 11 through 16: the Military
- Clauses 5 and 6: Money
- Clause 7: Mail (post roads)
- Clause 4: Migration (uniform rule of naturalization)
The Three T's:
Taxes, Tribes & Trade, and Tribunals
- Clauses 1 and 2: Taxes (and borrowing)
- Clause 3: Tribes & Trade (and commerce)
- Clause 9: Tribunals (and courts)
The Two P's:
Patents and Piracies
- Clause 8: Patents (arts and science)
- Clause 10: Piracies (and felonies)
Other Clauses:
- Clause 17: Authority over lands purchased by government
- Clause 18: Enabling Clause / Necessary and Proper Clause
Read more about the Enumerated Powers of Congress
http://tenthamendmentcenter.com/historical-documents/united-states-constitution/thirty-enumerated-powers/
http://constitutioncenter.org/blog/article-1-the-legislative-branch-the-enumerated-powers-sections-8/
Written on February 27th and 28th, 2020
Published on February 28th, 2020
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