Limited and Enumerated Powers

Limited and Enumerated Powers
Paul Gowder
As you will see in this course, there’s a lot of debate in constitutional law about, well, basically
everything. But there is one fundamental consensus point:
The federal government has limited and enumerated powers
The federal government doesn’t have any powers except those specified in the Constitution,
plus the powers that are necessarily inferred from those grants of power. In particular, it does
not have a general power to do whatever it wants. Most importantly, Congress cannot legislate
on any random subject it wants to: it can only legislate within the scope of its enumerated
This means that there are two kinds of constitutional challenge to any Act of Congress. Let’s
just call them con law I challenges and con law II challenges. This is kind of an artifical
distinction, you can easily rephrase one as the other, but it’s a distinction that will serve you
well in the beginning of this course to get a basic understanding of the logical space. (Also, as
the labels suggest, for the most part this first-year class is concerned with con law I challenges,
the con law II challenges are reserved for your upper-year class.)
A con law I challenge is of the form “the Constitution does not grant Congress (or the
President, etc.) the authority to act on this subject.” For example, suppose Congress passed
a “health and fitness” law, requiring every American to get a certain number of minutes of
exercise per day. It’s pretty clear that law would be unconstitutional: regulating people’s
exercise habits just isn’t within the power of the federal government. This is a con law I
By contrast, suppose Congress passes a law forbidding the sale of the Bible in interstate
commerce. There’s no con law I challenge to this law—regulating interstate commerce is
within Congress’s enumerated power. But there’s a big obvious con law II challenge: the First
Amendment forbids the government from tampering with freedom of religion.
As far as the federal constitution is concerned, there is no basic con law I challenge to a state
law. There might be con law II challenges, or there might be con law I-esque challenges based
in state constitutions. In other words, as far as the federal constitution is concerned, the
states have a police power, a term that just means “the general power to legislate for the
public good.” This is the heart of the constitutional idea of “federalism.”
The previous paragraph needs to be compromised a little bit, however, because there are some
areas that the Constitution commits to the exclusive authority of the federal government. For
example, only the federal government can declare war, the states have no such authority. This
is a kind of con law I challenge, but not one rooted in the idea of limited and enumerated
powers (the states don’t have limited and enumerated powers, they have a general police
power); rather, it’s rooted in the fact that the Constitution explicitly took this power away
from the states and gave it to the feds. (There are also many regulatory areas where the
states and the federal government both have power, an issue that we’ll consider when it comes
time to discuss the Supremacy Clause.)
The individual branches of the federal government also have limited and enumerated powers
that are subsets of the power of the whole. For example, even though the Constitution
commits military command to the federal government, that doesn’t mean that Congress can
go out in the field and start ordering soldiers about. The Constitution allocates that power to
the President, not to Congress. This, of course, is the constitutional idea of “separation of
That being said, a lot of the enumerated powers have been interpreted very broadly, especially
in the 20th century, although the Supreme Court has cut back on these in recent years. This is
all particularly true of the Commerce Clause, about which we’ll spend quite a lot of time—you
could actually come up with a Commerce Clause argument in defense of the “health and
fitness” law above, though it would be very weak.