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 powers. 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 challenge. 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 1 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 powers.” 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. 2
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