enumerated powers
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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 Federation#Federal governments, national government of the United States, a federal republic located primarily in North America, composed of 50 ...
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 It superseded the Articles of Confederation, the nation's first constitution, in 1789.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 nat ...
. 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 Civil and political rights, infringement fr ...
. 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 A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of ju ...
have broadly interpreted the enumerated powers, especially by deriving many implied powers from them. The enumerated powers listed in Article One include both exclusive federal powers, as well as concurrent powers that are shared with the states, and all of those powers are to be contrasted with reserved powers 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 in which the language "''The
Congress A congress is a formal meeting of the Representative democracy, representatives of different countries, constituent states, organizations, trade unions, political party, political parties, or other groups. The term originated in Late Middle Eng ...
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 Philosophy of law, legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution of the Unite ...
. Strict constructionists refer to a statement on the enumerated powers 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 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 The Constitution of the United States is the supreme law of the United States of America. It super ...
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 One of the United States Constitution#Section 8: Powers of Congress, Article I, Section 8, Clause 3). The clause states that the United States Con ...
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 List of municipalities in Maryland, most populous city in the U.S. state of Maryland, fourth most populous city in the Mid-Atlantic (United States), Mid-Atlantic, and List of United States cities by popula ...
, 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, Chief Justice of the United States from 1801 until his death in 1835. He remains the List of Justi ...
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 Supreme Court of the United States, U.S. Supreme Court for 33 years, first as an Associate justice of the Supreme Court of ...
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 Aristotelianism, Aristot ...
. The Constitution creates a
Federal Government A federation (also known as a federal state) is a political entity characterized by a political union, union of partially Federated state, self-governing provinces, states, or other regions under a central #Federal governments, federal 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'', 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 ma ...
. 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, chief justice of the United States since 2005. Roberts has authored the majority opinion in sever ...
, 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, U.S. Congressman John Shadegg introduced the Enumerated Powers Act, although it has not been passed into law. At the beginning of the 105th Congress, 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 Bicameralism is a type of legislature, one divided ...
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 A political movement is a collective attempt by a group of people to change government policy or social values. Political movements are usually in opposition ...
. 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 * Constitution in exile * New federalism * Originalism *
States' rights In United States, American politics of the United States, political discourse, states' rights are political powers held for the state governments of the United States, state governments rather than the federal government of the United States, fe ...
*
Strict constructionism In the United States, strict constructionism is a particular Philosophy of law, legal philosophy of judicial interpretation that limits or restricts such interpretation only to the exact wording of the law (namely the Constitution of the Unite ...


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