Enumerated Powers of Congress


1. With the U.S. Constitution, We The People created the federal government. It is our “creature”, and has no powers other than those We delegated to it in Our Constitution.

Webster’s American Dictionary of the English Language (1828), says re “constitution”:

“…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.” [boldface mine]

If you, dear Reader, will study this paper and read the Constitution, you will know more about it than most State & federal judges, most law professors & lawyers, those who spout off on TV & radio, just about anybody in Congress, and the self-educated who fixate on their own idiotic theories. And you will certainly know more than anyone currently occupying any office in the executive branch of the federal government.

2. The federal government 1 has three branches: Article I of the Constitution creates the Legislative Branch (Congress) & lists its powers; Article II creates the Executive Branch & lists its powers (President); and Article III creates the Judicial Branch (federal courts) & lists its powers.

In this paper, we will consider only the enumerated powers of Congress. But the powers of the other two branches are likewise strictly limited and enumerated.

3. Congress is NOT authorized to pass any law on any subject just because a majority in Congress think the law is a good idea! Instead, the areas in which Congress is authorized to act are strictly limited and defined (“enumerated”).

WE delegated to Congress the following Enumerated Powers over the Country at Large:

Article I, § 8, clauses 1-16 delegate to Congress the powers:

(1) To lay certain taxes;

(2) To pay the debts of the United States;

(3) To declare war and make rules of warfare, to raise and support armies and a navy and to make rules governing the military forces; to call forth the militia for certain purposes, and to make rules governing the militia;

(4) To regulate commerce with foreign Nations, and among the States, and with the Indian Tribes;

(5) To establish uniform Rules of Naturalization;

(6) To establish uniform Laws on Bankruptcies;

(7) To coin money and regulate the value thereof;

(8) To fix the standard of Weights and Measures;

(9) To provide for the punishment of counterfeiting;

(10) To establish post offices and post roads;

(11) To issue patents and copyrights;

(12) To create courts inferior to the supreme court; and

(13) To define and punish piracies and felonies committed on the high seas, and offenses against the Laws of Nations.

Other provisions of Our Constitution delegate to Congress powers over the Country at Large to make laws regarding:

(14) An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);

(15) Elections of Senators & Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);

(16) After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); 2

(17) After 1808, to restrict migration (immigration) to these United States (Art. I, §9, cl. 1);

(18) A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);

(19) To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)

(20) A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);

(21) Implementation of the Full Faith and Credit clause (Art. IV, §1); and,

(22) Procedures for amendments to The Constitution (Art. V).

The 13th, 14th, 15th, 16th, 19th, 23rd, 24th, & 26th Amendments delegated additional powers to Congress over the Country at Large respecting certain civil rights & certain voting rights, the public debt [lawfully incurred], income tax, successions to vacated offices, dates of assembly, and appointment of representatives from the D.C.

So! In a nutshell, the powers WE delegated to Congress over the Country at Large fall into four categories:

♠ International relations, commerce and war;

♠ Control immigration by restricting who may come to these United States, and establish a uniform rule of naturalization of new citizens;

♠ Domestically, to establish a uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy law, a [limited] power over interstate commerce, and mail delivery.

♠And in some of the Amendments, to protect certain civil and certain voting rights.

That’s it! All other powers are retained by the States or the People.

Federal Enclaves & Territories:

4. Two provisions of Our Constitution grant to Congress broad legislative powers over these two categories of specifically defined geographical areas:

a) Federal Enclaves: Article I, §8, next to last clause, grants to Congress “exclusive Legislation” over the following geographically tiny areas: the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. As James Madison said in Federalist No. 43 at 2., it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, magazines, etc. established by the federal government.

b) Territories: Article IV, §3, cl. 2 grants to Congress power to dispose of and make all needful Rules and Regulations respecting the Territory or other property belonging to the United States (as opposed to property belonging to individual states). As these territories became States, Congress’ powers under this Article were terminated.

Congress may not lawfully exercise ANY other powers!

5. Thus, Congress has NO LAWFUL AUTHORITY to bail out financial institutions, businesses, and homeowners who don’t pay their mortgages; NO LAWFUL AUTHORITY to take control of our health care; NO LAWFUL AUTHORITY to pass laws denying secret ballots to employees who are solicited for membership by labor unions; NO LAWFUL AUTHORITY to take away your IRA’s and other retirement accounts, NO LAWFUL AUTHORITY to take your guns, NO LAWFUL AUTHORITY to pass laws respecting energy consumption or “emissions”, education, housing, etc., etc., etc.

Therefore, all laws which Congress has made on such topics are unconstitutional as outside the scope of the legislative powers WE delegated to Congress in OUR Constitution. WE THE PEOPLE did not give such powers to Congress when we ordained and established the Constitution, created the Congress, and listed its 22 enumerated powers over the Country at large. And WE did not delegate those powers to Congress in any of the Amendments.

6. You ask, “How can Congress make all these laws if they are unconstitutional?

Congress gets away with it because WE are ignorant of what our Constitution says; and We have been indoctrinated into believing that Congress can do whatever they want!

Consider Prohibition: Up to 1919, everyone still understood that The Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages! So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amdt.).

But after the Progressives took over the federal government during the early 1900s, the federal government was transformed from one of limited & enumerated powers only to the Frankensteinian monster it is today. The Progressives are the ones who imposed the regulatory welfare state where the federal government regulates business and commerce, natural resources, human resources, and benefits some people [e.g., welfare parasites, labor unions & obama donors] at the expense of others.

The Progressives claimed the power to determine what is in the “public interest” and have the federal government implement their notions of what advances the “public interest”.

Under the Progressives, the federal government was no longer limited by the enumerated powers delegated in the Constitution; but would follow the “will of the people” as expressed by their representatives in the federal government. In other words, the Progressives gave the federal government a blank check to fill out anyway they want.

During the regime of Franklin D. Roosevelt (FDR), all three branches of the federal government abandoned the Constitution: FDR proposed “New Deal” programs; Congress passed them. At first, the Supreme Court ruled (generally 5 to 4) that these programs were unconstitutional as outside the legislative powers delegated to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal/progressive side, and the Court started approving FDR’s programs (5 to 4).

7. Since then, law schools don’t teach the Constitution. Instead, they teach decisions of the FDR-dominated supreme Court which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that three clauses, the “general welfare” clause, the “interstate commerce” clause and the “necessary & proper” clause, permit Congress to do whatever it wants!

8. “Well”, you ask, “what aboutthe general welfare clause’? Doesn’t that give Congress power to pass any law on any subject as long as it is for the ‘general Welfare of the United States’ “? NO, IT DOES NOT!

First, you must learn what “welfare” meant when the Constitution was ratified: “Welfare” as used in the Preamble & in Art. 1, §8, cl. 1, U.S. Constitution, meant

“Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government” (Webster’s, 1828).

But The American Heritage Dictionary of the English Language (1969), added a new meaning: “Public relief – on welfare. Dependent on public relief”. Do you see how our Constitution is perverted when new meanings are substituted for original meanings?

Second, James Madison addresses this precise issue in Federalist No. 41 (last 4 paras): Madison points out that the first paragraph of Art. I, §8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. So, yes! The powers of Congress really are restricted to those listed herein above.

OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace & prosperity, and the enjoyment of the ordinary blessings of society & civil government, was possible only with a civil government which was strictly limited & restricted in what it was given power to do!

9. “OK”, you say, “but what aboutthe commerce clause’ (Art. I, §8, cl. 3)? Doesn’t that give Congress power to pass laws on any subject which ‘affects’ ‘interstate commerce’ “? NO, IT DOES NOT! In Federalist No. 22 (4th para) and Federalist No. 42 (11th &12th paras), Alexander Hamilton & James Madison explain the purpose of the “interstate commerce” clause: It is to prohibit the States from imposing tolls and tariffs on articles of import and export – merchandize – as they are transported through the States for purposes of buying and selling. That’s what it does, Folks; and until the mid-1930’s and FDR’s “New Deal”, this was widely understood. 3

10. “Well, then”, you say, “doesn’t the ‘necessary & proper’ clause’ ["elastic clause" or "sweeping clause" ] (Art. I, §8, last clause) allow Congress to make any laws which the people in Congress think are ‘necessary & proper’?” NO, IT DOES NOT! Alexander Hamilton says the clause merely gives to Congress a power to pass all laws necessary & proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power (Federalist No. 33, 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (Federalist No. 33, 2nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy. (Federalist No. 33, 4th para). James Madison agrees with Hamilton’s explanation. (Federalist No. 44, 10th-17th paras). In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison are clear that no additional substantive powers are granted by this clause.

11. The 10th Amendment states:

“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.”

So! If a power is not delegated by Our Constitution to the federal government; and if the States are not prohibited (as by Art. I, § 10) from exercising that power; then that power is retained by the States or by The People. And WE are The People”!

12. Our Framers insisted repeatedly that Congress is restricted to its enumerated powers. James Madison says in Federalist No. 45 (9th para):

“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 former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…” [emphasis mine]

In Federalist No. 39 (14th para):

“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects.”

and in Federalist No. 14 (8th para):

“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects…” [emphasis mine]

13. In all its recent legislation, Congress ratchets up its concerted pattern of lawless usurpations. The executive branch and the federal courts approve it. Such is the essence of tyranny. They are “ruling” without our consent, and hence the federal government is now illegitimate. PH

Endnotes:

1 “Federal” refers to the form of government: An alliance of States associated in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas ONLY.

2 Some object that our Constitution endorsed slavery. During the 18th century, slavery was universal. But Article I, § 9, clause 1, is our Proclamation to the World that WE would abolish the slave trade! James Madison wanted the “barbarism” & “unnatural traffic” of the slave trade abolished immediately (Federalist Paper No. 42, 6th para).

3 See Justice Clarence Thomas’ concurring opinion in United States v. Lopez (1995). Justice Thomas’ opinion shows why those disposed to usurp attack him so virulently.

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About Publius Huldah
Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand, & the following: There is no such thing as Jew & Greek, slave & freeman, male & female, black person & white person; for we are all one person in Christ Jesus. She also writes legal and Constitutional commentary at her site: Publius-Huldah
  • Alan Spik

    I wish you would not paraphrase the Constitution.

  • Bill

    I recently read a paper from one of our "elite schools" that had spent a thousand years studying elected office holders and their understanding of the Constitution. The final result stated less than 30% of office holders could answer correctly simple basic questions regarding government and the Constitution. Add to that once in office they no longer respect or respond to the voters. They control the law enforcement, judges, and the military, and will only act when their power is threatened, or one donates massive money to their campaign.

  • http://www.facebook.com/charles.novitsky Charles Novitsky

    This article is deep.... thanks....

    When one looks at these enumerated limitations to the Fed Monster... many of these items can be grouped, and somewhat categorized for easier comprehension... maybe Publuis is talented enough to do that?? ( I count roughly 13 categories ).

    As I have stated in another post on this great forum, We need to find a way to restart reinforcing the impeachment process against all politicians in Washington that propose anything unconstitutional.... any bill ... any vote ... any law ... anything beyond enumerated powers.

    Furthermore, any SCOTUS justice that misapplies constitutional law ( eg Kelo v. City of New London (2005), gets impeached as well. We need some sort of Impeachment Police.

    Of course part of the irony is that congress voted that they cannot be impeached ( or something to that effect ), but maybe with enough momentum, that crime can be reversed.

    In any event, some independent committee reviews all of the crap coming out of DC each week, and through YouTube and the press reviews all unconstitutional crimes against the written meaning of the constitution. Recommendations for congress to investigate, or instigate proceedings are then issued. Yes, I know there is an exact procedure on how The House, and The Senate is supposed to do this... whatever the details... it is a way for us to put teeth back into the constitution... bite to the bark.

    Sort of McCarthyism, but for a good cause. Perhaps McCarthy was not the monster history made him out to be?

    • ReconVeteran

      No, Senator McCarthy was not the monster history has made him out to be. He went after the Communist in the State Department and that was it.

  • MIKE6080

    congress is a toothless tiger

  • TheTexasCooke

    It
    might be of use to also remember that "advise and consent" of the
    Senate was in place because the Senate was intended to be elected by the
    Governments of the Several States and, as such, every appointment and any
    treaty made by the President had to meet the approval of the Governments of the
    Several States. Also, following the impeachment of a President, or any other
    member of the Executive or Judiciary, it was intended that the representatives
    of the Governments of the Several States make the decision to remove them from
    office. It becomes clearer when you also note that every bill passed by
    Congress was to have the approval of the Governments of the Several States to
    become law. That is why it is important to repeal the 17th Amendment as a first
    step to get the Federal Government back under the control of the Constitution.
    The States were meant to be the first line of protection for the People against
    the Federal Government. That was the big impediment to the socialization of
    this country and Teddy Roosevelt's personal campaign to remove that impediment.
    As it is today, the Senate represents the parties of this country and,
    therefore, the Federal Government itself. Thank you for clarifying the actual
    powers of Congress, but the Senate is where the fix can be made....at
    least that's my opinion.

  • m123s

    Article 1, Section 8, begins with; ALL Legislative Powers herein granted shall be vested in Congress... How much Power is ALL? All. When We close one eye and look at the definition of a Constitutional Republic, Vs. Fascism, then add in 100 yrs. of history,it gives Us a good point of referrence. To correct this mess, We must know exactly where We are, right now.

  • Rock7373

    I keep reading articles like this one and others about all of the atrocities commited by both the federal and state governments, and the majority of them are obviously corrupt and criminal in their actions repubs and dems. Even if there are some that are honest they are still guilty because they are allowing the others to get away with it. We know our government is now fully controlled by the rich elite and globalists. So when do we see an article on how we can stop this and get our country back, other than voting in rigged elections or revolution, there has to be some other way than this, that would be a article worth reading.

    • http://www.facebook.com/rumsower Montie Rumsower

      The only recourse we have left is to fight.

  • http://twitter.com/KiniAlohaGuy Kini

    The Constitution is not taught in its actual meaning anymore. What with liberal Constitutional professors saying the Constitution is evil, and with Public schools transforming children into the next generation of Progressive Dependents in the next welfare state.

    Ladies and Gentlemen, and all ships at sea; we are losing our Republic.

  • http://www.facebook.com/rumsower Montie Rumsower

    IF you have the cognizant ability to read AND understand, this IS a real eye opener.

  • http://www.facebook.com/profile.php?id=516859771 John Sweet

    That our so called "Representatives" are allowing this to pass is proof of their complacency or complicity!

  • A. Levy

    None of the above actually matters when you have a Marxist administration that finds the Constitution as merely an inconvenience to be ignored, violated, and manipulated at will. And worse yet is the fact that it's ?our fault, not theirs. This is the price we pay for being weak and gullible and lacking the will to return our country to what it was intended to be. Free.