Enumerated powers

Enumerated powers is a term referring to Article 1 Section 8 of the U.S. Constitution which lists the specific powers of legislation granted to the United States Congress. The concept of enumerated powers implies that the legislature may exercise only those powers that are stated in its the Constitution, limited, of course, by the Bill of Rights and the other protections found in the Constituional text.

The classical statement of a government of enumerated powers is that by Chief Justice Marshall in McCulloch v. Maryland:

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.

Necessary and proper

The proper interpretation of the Necessary and proper clause has been controversial especially during the early years of the republic. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers. Loose constructionists, on the other hand, feel that the elastic clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers. It is often known as the "elastic clause" because of the great amount of leeway in interpretation it allows; depending on the interpretation, it can be used to "stretched" to expand the powers of Congress, or allowed to "contract", limiting Congress. In practical usage, the elastic clause has been paired with the commerce clause in particular to provide the constitutional basis for a wide variety of expansive federal laws.

Commerce Clause

The use of the Commerce Clause by Congress to justify its legislative power over citizens has been the subject of long, intense political controversy. Interpretation of the sixteen words of the Commerce Clause has helped define the balance of power between the federal government and individual states.

Tenth Amendment

The Tenth Amendment is cited as constitutional ground denying Congress the right to pass any law it sees fit. However, Congress has cited its taxation authority under the general welfare clause and, especially, the Commerce Clause for the authority to pass laws in realms of human behavior not mentioned in the Constitution. If a particular activity affects interstate commerce in any way, they have argued, then Congress has the authority to regulate that activity with any laws it deems necessary. The Supreme Court has nearly always upheld this argument, and taken a broad view of what activities might impact interstate commerce.

In the courts, this interpretation has consistently trumped the arguments of those who claim that the Tenth Amendment should set substantial limits on the power of Congress. An example frequently used to illustrate this point is the Wickard v. Filburn (1942) case, in which growing wheat on one's own land for one's own consumption was ruled to affect interstate commerce.

Rehnquist's New Federalism

The case of United States v. Lopez 514 U.S. 549 held unconstitutional the Gun Free School Zone Act because it exceeded the power of Congress to "regulate commerce... among the several states." There Chief Justice William Rehnquist wrote, "We start with first principles. The Constitution creates a Federal Government of enumerated powers." For the first time in 60 years, the Court found a federal statute to have exceeded the commerce power of Congress. Rehnquist's opinion in Lopez thus shocked many legal scholars.

For more details see: The Rehnquist Court and the Commerce Clause