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Legal Memorandum #29 on Legal Issues

July 30, 2008

Enumerated Powers Act Brings the Constitution to Capitol Hill

By

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.[1] 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 overruled.

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"[2]), 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.

Picking Powers

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.[3] 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.

Founding Principles

Those limitations are far greater than Congress's actions today may indicate. Put plainly, "The Con­stitution creates a federal government of enumer­ated powers,"[4] not one of general power, such as those of the states.[5] 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 Constitution.[6]

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.[7] 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."[8] 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[9]- 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.[10] 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.[11] 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.[12] 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 Rights.[13]

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.[14]

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.[15] 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"[16] and to thereby "avoid rendering superfluous" any words.[17]

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."[18] 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.[19]

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."[20] 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 Consti­tutional Convention.

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.[21] 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 the process.[22]

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.[23] 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."[24] 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 its passage.

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"[25] 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.[26] 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.[27] In this way, the consti­tutional design, and the wisdom it embodies, has been all but abandoned.

Conclusion

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,"[28] 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.


[1] Enumerated Powers Act, H.R. 1359, 110th Cong. § 2(b) (2007).

[2] U.S. Const. art. VI, cl. 3; 5 U.S.C. § 3331 (2008).

[3] H.R. 1359, 110th Cong. § 2(b) (2007).

[4] 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.").

[5] 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 added).

[6] Id.

[7] The Federalist No. 44, at 235 (James Madison) (Gideon ed., 2001).

[8] Id. at 237.

[9] 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.")

[10] U.S. Const. art. II, § 1, cl. 1 (emphasis added).

[11] See Charles Cooper, Reserved Powers of the States, in The Heritage Guide to the Constitution 371 (Edwin Meese III ed., 2005).

[12] 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.").

[13] Cooper, supra note 11.

[14] The Federalist No. 45, at 241 (James Madison) (Gideon ed., 2001).

[15] 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?").

[16] Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).

[17] Astoria Fed. Savings & Loan Ass'n v. Solimino, 501 U.S. 104, 112 (1991).

[18] 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.").

[19] Lopez, 514 U.S. at 588-89 (1995) (Thomas, J., concurring).

[20] James Madison, Notes of Debates in the Federal Convention of 1787 31 (1987).

[21] 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 powers.").

[22] 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 http://www.heritage.org/Research/Crime/wm1619.cfm.  

[23] 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).

[24] 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).

[25] Erwin Chemerinsky, The Rehnquist Court's Federalism Revolution, 41 Williamette L. Rev. 827 (2005).

[26] Lopez, 514 U.S. at 552; Morrison, 529 U.S. at 607.

[27] Brian Walsh & Andrew Grossman, The Heritage Foundation, Human Trafficking Reauthorization Would Under­mine Existing Anti-Trafficking Efforts and Constitutional Federalism (2008), available at http://www.heritage.org/Research/LegalIssues/lm21.cfm.

[28] 5 U.S.C. § 3331.

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