At first glance, it seems like the least controversial bill ever
put before Congress. The Enumerated Powers Act (H.R. 1359)
would require all legislation introduced in Congress to "contain a
concise and definite statement of the constitutional authority"
empowering Congress to enact it. Bills lacking such a
statement or containing one of questionable merit would be subject
to challenge by point of order, a procedural device to delay
consideration until the problem is corrected or the objection
For a Congress that routinely disregards the Constitution's
limits on its powers, however, the Act would hardly be innocuous.
Indeed, it would empower those few Members of Congress willing to
stand up and call attention to Congress's routine disregard of
the Constitution's division of powers, especially its
limitations on federal power. No wonder, then, that the proposal,
introduced each session by Representative John Shadegg (R-AZ) since
1995, has gone precisely nowhere and makes its first
appearance in the Senate, courtesy of Senator Tom Coburn
(R-OK), only this year (S. 3159).
If the Enumerated Powers Act were somehow enacted and
constitutional lions like Shadegg and Coburn given the power to
force debate on legislation of questionable constitutionality, the
majority of Members in both chambers might well soon regret it and
devise means to limit its effect. If only to avoid calls of
hypocrisy (after all, all Members do pledge to "support and defend
the Constitution"), they might keep the Act on the books but
render it impotent by routinely overriding the point of order. If
Congress remains determined to run roughshod over
constitutional limitations on its power, the Act alone would
be unable to prevent it from so doing.
Nonetheless, the idea of requiring all bills to state the
constitutional authority on which they rely is a worthwhile one.
There is an educational value to the exercise that stands to
attract additional Members, over time, to the "constitutional
caucus." The value of a few more reliable votes in opposition to
legislation that exceeds Congress's powers is not to be understated
when major legislation often passes by slim majorities. Further,
express statements of authority would reveal the hollowness of the
constitutional doctrine underlying so much congressional
action, providing fodder for academics, judges, students, and
others who think seriously about our constitutional order, the
wisdom of its design, and the consequences of departing from its
strictures. Judges could cease playing guessing games in trying to
discern Congress's constitutional justifications for its acts, and
this would provide some guidance to the courts as they reconsider
erroneous constitutional precedents.
Indeed, merely debating the merits of the Enumerated Powers
Act-something that has not yet come to pass on the floor of either
chamber- could serve a valuable function by forcing Congress to
consider the role of the Constitution in "the people's work."
To be sure, Congress will never pass a law that substantially
limits its own powers, so there will be no quick fix to restoring
original constitutional principles in the national legislature. The
Enumerated Powers Act, however, would reveal just how far
Congress has drifted from its textual mooring and, just perhaps,
began the task of helping it to reverse course.
The Constitution-the textual font of all the federal
government's powers-should play a leading role in the legislative
process, but today it is conspicuous in the Capitol only for
its absence from both chambers' debates. The Enumerated Powers Act
would not force Members to confront constitutional issues
head-on in every piece of legislation that they introduce-as they
are duty-bound to do-but would provide at least some small perch
for constitutional considerations and an opportunity for
Congress to consider how the aims of the legislation comport with
the constitutional design.
Under the Act, bills lacking a statement of constitutional
authority could be delayed from proceeding. When such a bill is
called up for consideration, any Member could raise a point of
order to challenge consideration of the legislation, and the
Speaker of the House or the President of the Senate (in practice
the presiding Senator at the time or the Vice President) would,
after consulting the parliamentarian, rule the bill out of order
unless the chamber voted to waive the point of order and
proceed-a vote that many Members of Congress, for appearances'
sake, may not wish to join.
The point of order would also be available in the case of bills
that contain only perfunctory statements of their
constitutional basis. For example, a bill to make jaywalking a
federal crime might name the Commerce Clause or the Necessary and
Proper Clause as the source of Congress's authority to enact it-a
hollow justification. A Member could raise a point of order against
such a bill to prevent its consideration. Again, the Speaker of the
House or the President (or presiding officer) of the Senate would
consult the parliamentarian and then rule on the challenge. That
ruling could be appealed to the chamber during debate, leading to a
vote. The result is that, whatever the outcome of these
deliberations, Congress would have to consider the
constitutional authorization for those bills and seriously
confront the limitations on its power.
Those limitations are far greater than Congress's actions today
may indicate. Put plainly, "The Constitution creates a federal
government of enumerated powers," not one of general power,
such as those of the states. Whereas the states may legislate in
nearly any area, save for those foreclosed by federal exclusivity
and the natural rights of the people, the federal government is
limited to those few powers that it was expressly granted in the
The purpose of this grand limitation is the protection of
individual liberty. Constitutional architect James Madison
identified the absence of a grant of general power, along with the
separation of powers among the branches, as central to the design
of a government that would be strong enough to defend and preserve
itself but not so strong that it would overpower its own
citizens. Surveying the powers conferred on the
federal government by the Constitution, Madison was adamant
that "no part of this power is unnecessary or improper, for
accomplishing the necessary objects of the union." The
Framers took care, in other words, to enumerate only those
powers absolutely necessary to the survival of the union, keenly
aware that any more generous grant could lead the federal
government to improper and illegitimate ends-to tyranny.
This premise is neither hidden in the interstices of the
Constitution's provisions nor afloat in emanant
"penumbras"-the location of what some regard as inviolable
constitutional commands- but plainly apparent in the strictures and
grants of the Constitution's first three articles that establish
the legislative, executive, and judicial branches. The grant of
power in Article I establishing the Congress is far more specific
and bounded than those in Article II and Article III. Article I
vests "All legislative powers herein granted"-that is, the
power to make law-"in a Congress" and then proceeds to
enumerate the specific powers granted. This is done primarily in
Section 8, beginning with "the power to lay and collect taxes,
duties, imposts, and excises." Most of the powers enumerated are
precise-for example, the power "To establish post offices and post
roads"-and the list itself is long. By contrast, Article II states
simply that "The executive power"-there is no "herein granted"
or other limitation-"shall be vested in a President of the United
States of America."
That the federal government's powers are ultimately limited
by their enumeration in the Constitution is affirmed in the
Tenth Amendment. It states that "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." The drafters of the Bill of Rights feared that an
enumeration of positive rights including ones that the federal
government did not even have the power to infringe would allow the
courts to infer such power to give those rights operative effect.
The Tenth Amendment does not confer any right, but expressly sets
forth the theory of enumeration as limitation and confirms that the
federal government's powers were not expanded by the Bill of
The virtue of enumeration, and thereby limitation, is the
subject of Federalist No. 45, in which James Madison addressed the
arguments of anti-federalists that the Constitution granted the
federal government powers sufficient to usurp or displace the
states' general power to legislate:
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, and the internal order, improvement, and
prosperity of the State.
Even the several of the enumerated powers that may appear to be
broad-such as taxing for the "general welfare" and making "all laws
which shall be necessary and proper for carrying into execution the
foregoing [enumerated] powers"-are, according to the
Constitution's Framers, tempered by the surrounding text and
traditional doctrines of statutory and constitutional
interpretation. Among those doctrines are reliance on the
plain meanings of the words at the time they were ratified,
noscitur a sociis (determining meaning by reference to
context), and the direction to "give effect, if possible, to
every clause and word" and to thereby "avoid rendering
superfluous" any words.
An example: Based on these principles, Congress's power to
"regulate commerce…among the several states" is not an
infinite reservoir of authority, as some would have. Rather,
that grant is limited by its own language and the other
enumerated grants (e.g., the power to construct post roads) that,
if read broadly, it would encompass and so render "mere
surplusage." Justice Clarence Thomas states the
argument well in his famous concurrence in Lopez:
[I]f Congress may regulate all matters that substantially affect
commerce, there is no need for the Constitution to specify that
Congress may enact bankruptcy laws, [Art. I, § 8,] cl. 4, or
coin money and fix the standard of weights and measures, cl. 5, or
punish counterfeiters of United States coin and securities, cl. 6.
Likewise, Congress would not need the separate authority to
establish post offices and post roads, cl. 7, or to grant patents
and copyrights, cl. 8, or to "punish Piracies and Felonies
committed on the high Seas," cl. 10. It might not even need the
power to raise and support an Army and Navy, cls. 12 and 13, for
fewer people would engage in commercial shipping if they thought
that a foreign power could expropriate their property with ease.
Indeed, if Congress could regulate matters that substantially
affect interstate commerce, there would have been no need to
specify that Congress can regulate international trade and commerce
with the Indians. As the Framers surely understood, these other
branches of trade substantially affect interstate commerce.
Put simply, much if not all of Art. I, § 8 (including
portions of the Commerce Clause itself), would be surplusage if
Congress had been given authority over matters that substantially
affect interstate commerce. An interpretation of cl. 3 that makes
the rest of § 8 superfluous simply cannot be correct.
Indeed, the Framers specifically rejected a narrow but less
specific grant of power to Congress that was proposed by Virginia:
"to legislate in all cases to which the separate
States are incompetent, or in which the harmony of the United
States may be interrupted by exercise of individual
legislation." While that proposal may reflect, more or
less, the federal government's legitimate scope of power, and does
reflect the rationale for the specific powers enumerated in the
Constitution, the Framers abandoned this plenary approach in
favor of the more precise enumeration that passed the
Thus, the Framers' Constitution guards the powers of the people
and their state governments jealously. It gives up to the federal
government precisely those powers the Framers considered necessary
to correct the shortcomings of its predecessor confederation and to
effect the limited ends of the federal government. Those
powers, in turn, are further limited by the provisions of
the Bill of Rights-a concession to those who feared that the
federal government would break the bounds of enumeration. Their
fear was, unfortunately, quite prescient.
The Missing Constitution
For all the Framers' attention to the question of the federal
government's powers, Congress only rarely considers the
Constitution's checks on its authority and the prudential limits of
federal power. The result: scores of laws that fall outside of
Congress's constitutional authority, as originally
understood, and a nation adrift ever further from the
constitutional norms that supported its greatest achievements. The
Commerce Clause, in particular, has become a carte blanche
for federal regulation of nearly any activity, from maintaining a
home garden to growing small amounts of marijuana for medical
use. Congress has abused the clause to muscle
in on states' police power, federalizing a variety of crimes
traditionally handled at the state level, such as violent crimes,
and reducing the effectiveness of state law-enforcement efforts in
Congress regularly shirks its duty to uphold the Constitution by
failing to seriously consider whether even its most far-reaching
proposals are authorized. For example, one recent bill that would
federalize gang crime contains a myriad of congressional
"findings" but no explanation of how the federal government gained
police power over common street crimes, something it surely
did not have around the time of the Framing. In an attempt to
sidestep this concern, the bill's drafters added an incantation to
each of its provisions defining offenses: "occur in or affect
interstate or foreign commerce." But no magic words,
sprinkled however liberally on a piece of legislation, can
bring an act within the scope of the Commerce Clause power. In
other cases where constitutional concerns arise, Congress
usually leaves the question of constitutionality to the courts,
denying that it has any duty to verify that it acts within the
limits of the law. Several supporters of the McCain-Feingold
campaign finance reform bill, for example, acknowledged that parts
of it were likely unconstitutional but nonetheless voted for
In a few cases, the courts have struck down overreaching
statutes, but in many more, laws of questionable constitutionality
go unchallenged or are upheld based on decades of loose precedent.
The Rehnquist Court, for example, touched off a "federalism
revolution" by striking down justtwo particularly
egregious abuses of the Commerce Clause power: one creating a
federal tort for crimes "motivated by gender" and another
prohibiting the possession of guns near schools. Despite those
cases and strong social science evidence that local crime is most
effectively fought at the state and local level (a conclusion
prefigured by the Framers), Congress routinely flexes its
"tough-on-crime" muscles to take on things like local criminal
gangs and ordinary prostitution. In this way, the
constitutional design, and the wisdom it embodies, has been
all but abandoned.
As every schoolchild learns in civics class, the national
government is one of limited powers, and any legislation that would
exceed those powers is unconstitutional. Rather than attempt to
place limits on a grant of absolute power-an endeavor that the
Framers recognized as doomed to failure-the original constitutional
text goes to the trouble of conveying specific and
narrow grants of authority to the federal government. Every
act of Congress must fall within some enumerated power or else it
is illegitimate, an usurpation of the power retained by the people
and their states and a threat to individual liberty.
Congress has lost sight of this democratic imperative.
Though all Members of Congress pledge to "support and defend the
Constitution of the United States against all enemies, foreign and
domestic" and "bear true faith and allegiance to the same,"
rarely if ever do sponsors of legislation, or those voting for it,
take the time identify the authority to enact it.
Finding constitutional authority for an act should not be an
afterthought and cannot be accomplished by adding special
incantations to the bill text, but is the primary inquiry in
determining whether a proposed act is legitimate and an
appropriate use of federal power. In a better world, the
Enumerated Powers Act would be superfluous and the constitutional
design a regular topic of congressional debates. That is not,
however, the world in which Congress legislates today.
Andrew M. Grossman is
Senior Legal Policy Analyst in the Center for Legal and
Judicial Studies at The Heritage Foundation. The author thanks
Brian Darling, Director of Senate Relations at The Heritage
Foundation, and Todd Gaziano, Director of the Center for Legal and
Judicial Studies, for their wise counsel.
 Enumerated Powers Act, H.R. 1359, 110th
Cong. § 2(b) (2007).
 U.S. Const. art. VI, cl. 3; 5 U.S.C.
§ 3331 (2008).
 H.R. 1359, 110th Cong. § 2(b)
 U.S. v. Lopez, 514 U.S. 549, 552 (1995);
U.S. v. Morrison, 529 U.S. 598, 607 (2000); Marbury v. Madison, 5
U.S. (Cranch) 137, 176 (1803) (Marshall, C. J.) ("The powers of the
legislature are defined, and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written.").
 See, e.g., The Federalist No. 45,
at 241 (James Madison) (Gideon ed., 2001) ("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; and the internal
order, improvement, and prosperity of the State.") (emphasis
 The Federalist No. 44, at 235 (James
Madison) (Gideon ed., 2001).
 See, e.g., Griswold v.
Connecticut, 381 U.S. 479, 484 (1965) ("[S]pecific guarantees in
the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance.")
 U.S. Const. art. II, § 1, cl. 1
 See Charles Cooper, Reserved
Powers of the States, in The Heritage Guide to the Constitution
371 (Edwin Meese III ed., 2005).
 The Federalist No. 84, at 445-46
(Alexander Hamilton) (Gideon ed., 2001) ("I go further, and affirm
that bills of rights…are not only unnecessary in the
proposed constitution, but would even be dangerous. They would
contain various exceptions to powers which are not granted; and on
this very account, would afford a colorable pretext to claim more
than were granted.").
 Cooper, supra note
 The Federalist No. 45, at 241 (James
Madison) (Gideon ed., 2001).
 The Federalist No. 41, at 213-14 (James
Madison) (Gideon ed., 2001) ("But what color can the objection
have, when a specification of the objects alluded to by these
general terms immediately follows, and is not even separated by a
longer pause than a semicolon?").
 Montclair v. Ramsdell, 107 U.S. 147,
 Astoria Fed. Savings & Loan Ass'n
v. Solimino, 501 U.S. 104, 112 (1991).
 Marbury, 5 U.S. (1 Cranch) at
174 (reasoning "It cannot be presumed that any clause in the
constitution is intended to be without effect; and therefore such a
construction is inadmissible, unless the words require it.").
 Lopez, 514 U.S. at 588-89 (1995)
(Thomas, J., concurring).
 James Madison, Notes of Debates in the
Federal Convention of 1787 31 (1987).
 Wickard v. Filburn, 317 U.S. 111,
125-29 (1942); Gonzales v. Raich, 545 U.S. 1, 57-58 (Thomas, J.,
dissenting) ("Respondents Diane Monson and Angel Raich use
marijuana that has never been bought or sold, that has never
crossed state lines, and that has had no demonstrable effect on the
national market for marijuana. If Congress can regulate this under
the Commerce Clause, then it can regulate virtually anything-and
the Federal Government is no longer one of limited and enumerated
 See, e.g., Erica Little &
Brian Walsh, The Heritage Foundation, The Gang Abatement and
Prevention Act: A Counterproductive and Unconstitutional Intrusion
into State and Local Responsibilities (2007), available at
 Many are amusingly perfunctory-e.g.,
"gangs commit acts of violence or drug offenses for numerous
motives, such as membership in or loyalty to the gang, for
protecting gang territory, and for profit." Gang Abatement and
Prevention Act of 2007, S. 456, 110th Cong. § 3 (2007).
 Id. at § 101 ("It shall be
unlawful for any person to knowingly commit, or conspire, threaten,
or attempt to commit, a gang crime for the purpose of furthering
the activities of a criminal street gang, or gaining entrance to or
maintaining or increasing position in a criminal street gang, if
the activities of that criminal street gang occur in or affect
interstate or foreign commerce") (emphasis added).
 Erwin Chemerinsky, The Rehnquist
Court's Federalism Revolution, 41 Williamette L. Rev. 827
 Lopez, 514 U.S. at 552;
Morrison, 529 U.S. at 607.