Last October, Congress passed the Emergency Economic
Stabilization Act, creating the Troubled Asset Relief Program
(TARP) that has since become the executive branch's slush fund for
intervening in the economy. At the time, many Members of Congress
believed the legislation to be unwise; only a few, however,
recognized that it was likely unconstitutional.
That is typical for a Congress that considers itself
unconstrained by the Constitution's enumeration of its limited
powers. Reversing that delusion is the goal of the Enumerated
Powers Act (H.R. 450, S. 1319), introduced by Representative John
Shadegg (R-AZ) and Senator Tom Coburn (R-OK).
The Act would require all legislation introduced in Congress to
contain a concise explanation of the constitutional authority
empowering Congress to enact it. Failure to comply would make
a bill subject to a point of order, a procedural device to delay
consideration until the problem is corrected or the
This simple requirement 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 Shadegg since 1995, has
gone precisely nowhere.
Though the Act could not guarantee the constitutionality of
legislation, it would have a significant effect on Congress. Most
clearly, when invoked it would shift debate to fundamental
questions of the rule of law. There is an educational value to this
exercise that stands to attract additional Members, over time, to
the "constitutional caucus."
Most importantly, requiring legislation to state the basis of
its authority would reveal the hollowness of the
constitutional doctrine underlying so much congressional action.
Every bill would be an opportunity for Americans to think seriously
about our constitutional order, the wisdom of its design, and the
consequences of departing from its strictures.
The Constitution -- the 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 and take an oath to do -- but would provide a perch
for constitutional considerations and an opportunity for Congress
to consider how the aims of the legislation comport with the
Under the Act, any bill lacking "a statement of the
constitutional authority relied upon" (or, in Senator Coburn's
stronger formulation, an "explanation of the specific
constitutional authority") could be delayed from proceeding. When
such a bill is called up for consideration in the House, any Member
could raise a point of order to challenge consideration of the
legislation, and the Speaker of the House 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, for appearances' sake, may not wish to join. In the
Senate, a Senator raising the point of order could compel up
to several hours of floor debate with the chief supporter of the
legislation on its constitutionality. After that debate, the point
of order would be put to a vote.
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. Whatever the outcome,
Congress would be forced to consider the constitutional
authorization for that legislation 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
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
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
[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
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
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 the process. More recently, Congress and the executive
branch have relied on the commerce power to support
unprecedented interventions in the U.S. economy and the
trampling of individual property rights.
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, Senators Edward Kennedy
(D-MA) and Christopher Dodd (D-CT) recently proposed a radical
health care "reform" that would "transfer enormous power over
health care to Washington, including regulatory power
traditionally exercised by the states over the rules governing
health insurance." In current drafts, the
constitutional basis for this expansion of federal control is
unspecified -- probably because there is none.
In a sop to doctors, President Obama has proposed that the
bill also take aim at medical malpractice liability, a
creature of state law alone. But with what
constitutional authority? None of the powers enumerated in Article
I, Section 8, allows the federal government to abrogate state tort
law as it applies to wholly intrastate conduct. Indeed, the
proposal quite clearly runs afoul of the vertical separation
of power -- that is, federalism -- inherent and explicit in the
constitutional structure. Doctors, as well as conservatives,
should especially beware of this encroachment. The power to limit
state tort claims now could be used to expand them in the
Another example is a recent bill that would federalize gang
crime. It contains myriad 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 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" 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, a
usurpation of the power retained by the people and their states and
a threat to individual liberty.
Congress has lost sight of this 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 to
identify the authority to enact it. There are severe consequences
to this fecklessness, as Americans have witnessed again and again
over the past year.
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
Enumerated Powers Act, H.R. 450, 111th Cong.
§ 2(b) (2009); S. 1319, 111th Cong. § 2(b) (2009).
Senator Coburn's version of the legislation is identical to
Representative Shadegg's but for an additional subsection
concerning Senate procedure.
U.S.Const. art. VI, cl. 3; 5 U.S.C. § 3331
450, 111th Cong. § 2(b) (2009).
Under the provision and Senate procedure, the
debate time would be no more than three hours. The Senator raising
the point of order would have 1.5 hours to make his case, and the
floor manager of the bill would have the same amount of time to
rebut it. Because both could yield their time, the debate could
last from 10 minutes up to three hours.
These additional Senate procedures are
specified only in S. 1319.
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 added).
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. I, §§ 1, 8
Id. at 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 15.
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, 152
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 Gang Abatement and Prevention Act: A
Counterproductive and Unconstitutional Intrusion into State and
Local Responsibilities, Heritage Foundation WebMemo No. 1619,
September 17, 2007, available at http://www.heritage.org/Research/Crime/wm1619.cfm.
Sheryl Gay Stolberg & Robert Pear,
Obama Open to Reining in Medical Suits, N.Y. Times, June 15,
2009, at A1.
U.S. Const. amend. X.
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
2009, S. 132, 111th Cong. § 3(5) (2009).
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
Erwin Chemerinsky, The Rehnquist Court's
Federalism Revolution, 41 Williamette L. Rev. 827 (2005).
Lopez, 514 U.S. at 552;
Morrison, 529 U.S. at 607.