Enumerated Powers Act

Rep. John Shadegg yesterday introduced The Enumerated Powers Act, which would “require Members of Congress to include an explicit statement of Constitutional authority into each bill that is introduced.”

The antecedents for such legislation are strong. Indeed, it really just reinforces the 10th Amendment which states, in its entirety, “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.”

Shadegg cites the father of modern American conservatism, Barry Goldwater, as his model:

I have little interest in streamlining government or in making it more efficient, for I mean to reduce its size. I do not undertake to promote welfare, for I propose to extend freedom. My aim is not to pass laws, but to repeal them. It is not to inaugurate new programs, but to cancel old ones that do violence to the Constitution, or that have failed in their purpose, or that impose on the people an unwarranted financial burden. I will not attempt to discover whether legislation is ‘needed’ before I have first determined whether it is constitutionally permissible. And if I should later be attacked for neglecting my constituents’ interests, I shall reply that I was informed their main interest is liberty and that in that cause I am doing the very best I can.

Marshall Manson calls this “a great idea” and observes, “If nothing else, it might remind Congress that the Constitution is a limiting document — a blueprint that puts strict boundaries on the federal government’s power and authority to interfere with our lives.” True enough.

Unfortunately, we so long ago moved away from governing according to the Constitution that a return to the 1789 model is inconceivable. Further, the Framers themselves left a gapping loophole in the concept of enumerated powers-only governance in the very section where said powers are enumerated, Article I, Section 8: “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.” So, really, all Congress would need to do is claim that any bill it signed was “necessary and proper” and that it related to those “other powers.” Better yet, in the age on the giant federal bureaucracy, the “any department or officer thereof” rationale is vast, indeed.

FILED UNDER: Congress, Law and the Courts, US Constitution, US Politics, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. legion says:

    Now, if only there was something similar describing the powers and limitations of the Executive Branch…

    Oh wait…

  2. James Joyner says:

    Well, Article I provides very detailed enumeration of legislative powers whereas Article II is very vague.

    The president is given the power as commander-in-chief, to make various appointments, to demand answers from department heads, and to negotiate treaties. He’s also given, though, what some (including George Washington) say is a blanket authority through its opening phrase, “The executive Power shall be vested in a President of the United States of America.”

    FindLaw has a superb and detailed discussion.

  3. James,

    I think you stopped reading to soon. Its not just all laws “necessary and proper”, but “necessary and proper for carrying into execution the foregoing powers”.

    I suspect that in practice this would quickly devolve into an exercise in boilerplate, but it shouldn’t do any harm and might do some good. It is also the kind of legislation that “looks good” for the minority to put forward. If they majority kills it in committee (most likely), they can campaign against the majority for being against something that appeals to their base and a sizable center. If it passes, it isn’t likely to bite them in the butt.

    I seem to remember a controversy on whether the common defense power could be used to justify the congress saying how many children people should have. It went something like you need an army for the common defense. To have an army, you need soldiers. So stating each woman should have a minimum of X children is merely ensuring that enough soldiers will be available. At least something like this would make them state their logic on how this is somehow the business of congress to get involved.

    For those on the left, imagine the Terry Schiavo case playing out with this requirement.

  4. Gollum says:

    James – I think you are exactly right, and more’s the pity. The real responsibility for policing Congress’ authority doesn’t rest with Congress, however, it rests with the courts, who have so expanded the reach of the interstate commerce clause that there’s practically nothing that wouldn’t fit inside it anymore. Shadegg’s bill is interesting but, at the end of the day I think, of very little effect.

  5. one bit shy says:

    I’m curious what “Constitutional authority” Shadagg would cite for this bill.

    Suppose this were to pass into law. What exactly do you suppose would happen if and when Congress passed a law that did not include said statement? Would it not be deemed law even though it met all the criteria for law as described in the Constitution?

  6. James Joyner says:

    I’m curious what “Constitutional authority” Shadagg would cite for this bill.

    Article I, Section 5: “Each House may determine the rules of its proceedings…” would seem to cover it.

    But, yes, you’re right: Any subsequent law will generally obviate any previous law that it’s in conflict with. Legislatures can’t bind their successors with mere legislation. On the other hand, these kind of laws sometimes have their desired effect. Gramm-Rudmann-Hollings forced several Congresses into budget cuts because they had been so public in touting the bill. Ultimately, it died when it became untenable but it had its impact.

  7. jpe says:

    I’ve noticed that bills that stretch the limits of enumerated powers tend to be those that contain that language (the recent and grossly unconstitutional hate crime bill, for instance). If that’s generally the case, the only thing the bill would do is get the acknowledgment of powers on bills that obviously are within Congress’s power.

  8. RJ Sponsel says:

    If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer. . .the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America. . . If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty. (Federalist No. 57)–RJ