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Enumerated Powers

6 min read

Part of The Constitution and the courts.

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Every episode (3)

Who argued it

Sheldon Gilbert · Manny Klausner · Matt Welch

Libertarianism · 14th Amendment · Commerce Clause · Supreme Court · Obamacare · Constitutional Law · Housing Policy · Regulatory State

Background

The doctrine and its erosion

Enumerated powers names the view that the federal government possesses only the powers the Constitution lists. Bob Zadek introduces the term in an education episode, where Andrew J. Coulson explains that before FDR the General Welfare Clause was read as a preamble to the specific powers granted elsewhere in the Constitution — a setup for the enumerated powers — and that after Roosevelt a new interpretation held sway under which the general welfare was its own power, so that anything legislators claimed would help people was constitutional. On that account there is now effectively no limit on what the federal government can do, and only this reading makes a federal Department of Education, a No Child Left Behind Act or a Race to the Top legal at all End the Unconstitutional Federal Involvement in Education (2009).

Coulson ties the first meaningful federal foray into education to the 1965 legislation that followed Kennedy’s death, and reports that since Lyndon Johnson’s Great Society education legislation the federal government has spent $1.85 trillion on education while test performance has flatlined and the achievement gap by race and income has not narrowed End the Unconstitutional Federal Involvement in Education (2009).

Madison against the unlimited reading

A 2010 episode frames the doctrine through two quotations. Zadek plays a clip of Pete Stark saying there are no constitutional limits to what the federal government can do, and sets against it James Madison’s words in Federalist 45 that the powers delegated to the federal government are few and defined, while those remaining to the states are numerous and indefinite. Zadek credits Madison with the first draft of the Constitution and with being the leading proponent of the Constitution in the Convention of 1787, and argues that honoring Madison’s view rather than Stark’s would make balancing the budget without raising taxes easy A Libertarian Plan (2010).

The 9th and 10th Amendments

Carol Berkin, discussing her book on the Bill of Rights, describes the fight over the word “expressly.” The Anti-Federalists, outnumbered in Congress, wanted the amendment to say that only powers expressly given to the federal government could be used; Berkin locates that fight in the 10th Amendment, which reserves to the states and the people the powers not delegated to the United States nor prohibited to the states. She says the framers wanted the ability to legislate on matters they had not thought of when writing the Constitution, which is why they kept implied powers and the necessary and proper clause. Zadek puts the issue as very limited enumerated powers, with a fear that Congress would take those specific powers and expand them through necessary and proper and other clauses Carol Berkin on The Bill of Rights No One Wanted (2016).

Berkin also describes the 9th Amendment as protecting unenumerated rights: the fact that the founders specifically mentioned freedom of the press and freedom to practice religion does not derogate from other rights not mentioned, and she calls the question of what those rights are an ongoing debate after 235 years Carol Berkin on The Bill of Rights No One Wanted (2016).

Immigration

In a 2018 episode, Zadek notes that the Constitution had very little to say about immigration and citizenship, and that Congress became active on quotas and immigration at the end of the 19th century beginning with the Chinese Exclusion Act. Sheldon Gilbert lays out the argument of Ilya Somin, who walks through the enumerated powers in Article 1 and asks where the power to regulate immigration appears, observing that it would be surprising for so immense a power to be merely implicit when the list includes much more basic powers such as operating post offices. Gilbert adds that those who find an enumerated power point to clauses that do exist, including the power to establish a uniform naturalization process, reasoning that if Congress can make someone a citizen it must have the lesser power to decide who may enter to be eligible for citizenship. He notes that a lack of congressional power would not mean states lack power — Texas might very well have power to regulate immigration Revenge of the Pen and the Phone (2018).

The administrative state

A 2019 episode with John Marini of the University of Nevada, Reno concerns his book Unmasking the Administrative State, described as covering the historical shift from a government of limited, enumerated powers to a centralized bureaucracy run by unelected experts, and how that evolution has eroded individual autonomy and the rule of law the__doctor_for_liberty__on_opioid_abuse__redu. Randall Holcombe, in a separate 2019 episode, contrasts two visions of democracy: elections as a way of determining who holds the power of government, which he attributes to the founders, versus democracy as carrying out the will of the people. Under the first vision, a Constitution gives the federal government limited and enumerated powers and elections decide who exercises them; a constitutional government with limited and enumerated powers does not do what the people want but only what the Constitution empowers it to do Randall G. Holcombe on Liberty in Peril (2019).

Across episodes

The topic recurs across the episodes without a single line of development: Coulson in 2009 traces the erosion to the General Welfare Clause after FDR, Zadek in 2010 opposes Madison’s “few and defined” formulation to Pete Stark’s denial of any limits, Berkin in 2016 locates the fight over “expressly” in the 10th Amendment, Gilbert in 2018 applies the doctrine to immigration, and Marini and Holcombe in 2019 describe its displacement by the administrative state and by a will-of-the-people conception of democracy.

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