If you are like me and have been out of school for a good twenty or more years, you probably have no idea what enumerated powers are, let alone some examples. I know they have something to do with the Constitution of the United States, but, frankly, that’s about it. So what are enumerated powers, and what are some examples?
Enumerated powers are explicit powers listed in Article 1, section 8 of the United States Constitution and contain the obligations and duties that Congress has in the government. It is specific about what Congress can do and what they have to do. It has been referred to as the “great laundry list” of congressional chores.
Some of these powers are to lay and collect taxes; pay debts and borrow money; regulate commerce; coin money; establish post offices; protect patents and copyrights; establish lower courts; declare war, and raise and support an Army and Navy. There is also another clause added at the end known as the “Elastic Clause.” It is the only implied clause and is meant to aid in enacting any of the 17 enumerated powers where necessary.
The History Behind the Need for Enumerated Powers
The framers of the Constitution wanted to somehow guarantee that the new federal government would not try to take total control and oppress the people they governed. They wanted to make sure there was a federal framework that ensured a balance between decentralized and centralized governance forces. Yet, the Constitution did not outline standard operating procedures that dictated precisely how the states and federal governments would handle all policy situations that could come up in the future.
Thus, they had to develop a way for Congress to have power over some things but not over everything. And Article 1, Section 8 of the United States Constitution was written to determine what Congress could do without the approval of the States.
Specific Enumerated Powers
The following list of 17 Congressional powers gives Congress the authority to:
- Lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;
- To borrow Money on the credit of the United States;
- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
- To establish a uniform Rule of Naturalization and uniform Laws on the subject of Bankruptcies throughout the United States;
- To coin Money, regulate the Value thereof, and of foreign coin, and fix the Standard of Weights and Measures;
- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
- To establish Post Offices and post Roads;
- To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
- To constitute Tribunals inferior to the Supreme Court;
- To define and punish Piracies and Felonies committed on the high Seas and Offenses against the law of Nations;
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
- To provide and maintain a navy;
- To make Rules for the Government and Regulation of the land and naval Forces;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions;
- To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
- To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.
What Is the Elastic Clause, and Why Was It Needed?
The Elastic Clause, also known as the Necessary and Proper Clause, is the only source of implied powers of Congress.
- To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
In 1819 Congress found itself in a situation. They needed to create the Second Bank of the United States and said that it was “necessary and proper” for the welfare of the United States and its citizens. Yet the state of Maryland tried to place a tax on notes issued by the bank, and U.S. Representative John McCulloch appealed it to the Supreme Court, which ruled in McCulloch’s favor. This famous case was known as McCulloch vs. Maryland, and Congress has been using it as a precedent ever since.
Overall, the powers of Congress are limited to those listed in Article 1, Section 8 and those that are deemed necessary and proper to carry out the specific powers.
An Example of Enumerated Powers in Use
The Regulation of Firearms
Congress can regulate firearms in the United States because it is within the “commerce power” coming from the Commerce Clause and the “taxing power” coming from the Taxing and Spending Clause.
Each state has enacted a variety of laws concerning the possession, registration, and carrying of firearms, as well as other things. Yet there are federal firearms laws as well that are enforced by the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). The NFA was the first major federal legislation regulating the sale and possession of firearms. They did this through a taxation and registration scheme with the hopes of curbing the rise of violence connected to organized crime by targeting weapons typically used by gang members.
Although Congress has a broad constitutional authority to regulate firearms, any firearm proposal must be rooted in one of Congress’s enumerated powers.
Congress’s ability to enact gun laws was challenged in United States v. Lopez, where the Supreme Court struck down a provision of the Gun-Free School Zones Act of 1990. This prohibited anyone from knowingly possessing a firearm in a school zone. Because possessing a firearm in a school zone is not an activity that substantially affects commerce, it was not a proper use of Congress’s enumerated power.
How Congress Tries to Exert Power With the Elastic Clause
Once again, the Necessary and Proper Clause of the U.S. Constitution gives Congress the power to fulfill its legal powers. It gives them the flexibility to achieve the other 17 enumerated powers.
As an example, suppose the government wanted to collect taxes. They would need a tax-collecting agency to do so. Yet passing a law to create a tax-collecting agency is not within their powers.
However, because they must collect taxes, they can use clause 18 to say that they must first create a tax-collecting agency because it is a necessary means to have an agency in order to fulfill their obligation to collect taxes.
The Elastic Clause and Obamacare
The Patient Protection and Affordable Care Act, also known as Obamacare, began in March 2010. It was created to make health care affordable to everyone in the United States by lowering health insurance costs and making sure everyone had minimum coverage. It was a federal law that required everyone to either obtain insurance through their employer or privately by 2014. If they did not acquire insurance by then, they would be required to pay a fine in the form of a tax.
The plaintiffs challenged the government’s involvement saying that Congress exceeded its Constitutional power by including an “individual mandate” to buy health insurance, that the Medicaid expansion provision was unconstitutionally coercive, and that the law’s employer mandates interfered with state sovereignty.
When the Department of Health and Human Services appealed the district court’s decision, the three-judge panel agreed that the individual mandate was an unconstitutional use of power by the government, but the rest of the law was valid. So they appealed to the Supreme Court.
One of the Affordable Care Act’s main provisions was the “individual mandate,” which required everyone to purchase a minimum essential portion of health insurance or make a “shared responsibility payment.” This law described the payment as a penalty or punishment to be paid to the IRS with their taxes. This was how Congress attempted to use their enumerated powers to collect tax as a way to legally implement this penalty for those who did not acquire insurance.
In the end, five justices of the Supreme Court believed that the individual mandate was outside of Congress’s powers under the commerce clause and the necessary and proper clause of the Constitution. But they concluded that the individual mandate was a tax and, therefore, a valid exercise of Congress’ power under the tax and spending clause.
In conclusion, enumerated powers limit Congress by specifying what they can and cannot control. It also allows them to do what is necessary for the entire nation of the United States.
This way, Congress can operate effectively in its specified responsibilities while, at the same time, leaving room for individual states to govern themselves in all other matters.
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Alexandra Christensen is a freelance writer and editor. When she is not working on an assignment, she can be found hanging around with other writers on Medium.com/@alexandra_creates where she writes mostly about raising foster and adopted kids and those with invisible disabilities.