Malcolm Rivera
The Enumerated Powers, also referred to as Expressed Powers, Explicit Powers, or Delegated Powers, are the powers granted to the federal government of the United States by the United States Constitution. These powers are listed in Article I, Section 8, and include the power to lay and collect taxes, pay debts and borrow money, regulate commerce, coin money, establish post offices, protect patents and copyrights, establish lower courts, declare war, and raise and support an Army and Navy. The Elastic Clause, also known as the 'Necessary and Proper' clause, allows Congress to stretch its powers to fit its needs. This has been interpreted broadly, allowing Congress to expand its powers over time.
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What You'll Learn
Congress's powers to lay and collect taxes
The power to tax is considered essential to the effective functioning of the government. It enables the government to raise revenues to support its operations and fulfil its responsibilities, such as policing, national defence, and regulating commerce. The Framers of the Constitution recognised the importance of this power, placing it first in the list of enumerated powers granted to Congress.
The Taxing Clause grants Congress broad authority in levying taxes, with the Supreme Court emphasising that this power "reaches every subject" and "embraces every conceivable power of taxation". However, this power is not without limitations. The Constitution stipulates that all "Duties, Imposts and Excises shall be uniform throughout the United States". Additionally, the power to tax is a concurrent power shared by the federal government and individual states, and the scope of this power has been curtailed by judicial decisions at times.
The Sixteenth Amendment, ratified in 1913, further clarified Congress's power to lay and collect taxes on income, regardless of the source, without apportionment among the states. This amendment was upheld by the Supreme Court in Brushaber v. Union Pacific Railroad, which ruled that income taxes were constitutional under the Sixteenth Amendment, even if they were unapportioned.
The power to tax implicitly grants Congress the power to spend the revenues raised. However, the extent to which Congress should exercise this spending power has been a continuous source of debate. While some interpret the Taxing Clause as granting substantive power to appropriate funds, others argue that Congress's spending power arises from the Necessary and Proper Clause.
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The power to declare war
The US Constitution's Article I, Section 8, Clause 11, also known as the Declare War Clause, grants Congress the power to declare war. This power unquestionably gives the legislature the authority to initiate hostilities. The clause states:
> "The Congress shall have Power ... to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
The Declare War Clause is interpreted as a limit on the president's power to use military force without Congress's approval. While it is generally agreed that the president cannot declare war on their own authority, the extent to which this clause restricts their ability to use military force remains contested.
Historically, Congress's approval was thought to be necessary for initiating wars, as seen in the War of 1812 and conflicts with the Barbary States of Tripoli and Algiers. However, in modern times, presidents have used military force without formal declarations or express consent from Congress on numerous occasions. For example, President Truman's involvement in the Korean War and President Obama's authorisation of the bombing campaign in Libya in 2011.
The interpretation of the Declare War Clause has been a subject of debate, with proposals for a Constitutional Amendment to require a national referendum on war declarations. Despite the controversy, the United States Constitution maintains that Congress holds the sole authority to issue formal war declarations.
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Raising and supporting an Army
The US Constitution grants Congress the power to "raise and support Armies". This power is derived from Article I, Section 8, Clause 12 of the Constitution, which states:
> "The Congress shall have Power ... To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years."
This clause gives Congress the authority to establish and maintain a standing army, including the ability to appropriate funds for that purpose. However, to prevent the potential abuse of power and to ensure congressional oversight, the Framers included a limitation on the duration of such appropriations, specifying that no funds appropriated for the army shall be used for longer than two years.
Historically, the English king had the power to initiate wars and maintain armies and navies. However, the Framers of the US Constitution were aware that these powers had often been used to the detriment of the liberties and well-being of the people. As such, they vested these powers in Congress, requiring the consent of the legislative branch for the maintenance of standing armies.
The Supreme Court has affirmed Congress's "broad constitutional power" to raise and regulate armies, as seen in the case of United States v. O'Brien, where the Court upheld Congress's power to "classify and conscript manpower for military service". Additionally, the Court has clarified that the power of Congress to mobilise an army is distinct from its authority to call upon the militia, with the former being the paramount power of the National Government.
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Congress's power over intellectual property
The US Constitution grants Congress certain powers, known as enumerated, expressed, explicit, or delegated powers. Most of these powers are listed in Article I, Section 8. One of these powers is the Intellectual Property Clause, also known as the Patent Clause, the Copyright Clause, the Patent and Copyright Clause, and the Progress Clause.
The Intellectual Property Clause gives Congress the power to grant authors and inventors exclusive rights over their respective writings and discoveries for a limited time. This clause provides the foundation for federal copyright and patent systems. A copyright gives authors or their assignees the exclusive right to reproduce, adapt, display, and perform an original work of authorship, such as a literary, musical, artistic, photographic, or audiovisual work, for a specified time period. Similarly, a patent gives inventors or their assignees the exclusive right to make, use, sell, or import an invention that is new, non-obvious, and useful for a specified time.
The Framers included the Intellectual Property Clause in the Constitution to facilitate a uniform, national law governing patents and copyrights. In their view, the states could not effectively protect copyrights or patents separately. Under the patchwork state-law system that prevailed during the Articles of Confederation period, creators had to obtain copyrights and patents in multiple states under different standards, a difficult and expensive process that undermined the purpose and effectiveness of the legal regime.
The Intellectual Property Clause is both a grant of power and a limitation. Exclusive rights can only be granted as a means to promote the progress of science and useful arts, preventing the patenting of overly broad or useless ideas. This reflects an "economic philosophy" that the "encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." Without legal protection, competitors could freely copy creations, denying the original creators the ability to recoup their investments in time and effort, reducing the incentive to create in the first place.
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The power to coin money
The US Constitution grants Congress the power to coin money, regulate the value of money, and of foreign coin, and fix the standard of weights and measures. This power is derived from Article I, Section 8, Clause 5 of the Constitution, which states: " [The Congress shall have Power... ] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures".
In summary, the power to coin money grants Congress exclusive authority over the currency of the United States, encompassing the power to mint money, determine its value, establish banks, manage its circulation, and punish counterfeiting. This power is derived from Article I, Section 8 of the Constitution and has been interpreted by the Supreme Court to give Congress broad authority over the nation's currency.
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Frequently asked questions
The expressed powers, also called enumerated or explicit powers, are the powers granted to the federal government of the United States by the United States Constitution. Most of these powers are listed in Article I, Section 8. Here are some of the 27 expressed powers:
- The power to lay and collect taxes, duties, imposts, and excises.
- The power to pay the debts and provide for the common defence and general welfare of the United States.
- The power to regulate commerce with foreign nations and among the states.
- The power to establish a uniform rule of naturalization and uniform laws on bankruptcy.
- The power to coin money and regulate its value.
The expressed powers limit the power of Congress by specifying what it can do. These powers are contrasted with reserved powers that only the states possess.
One of the expressed powers is the power to lay and collect taxes. This means that Congress has the authority to impose and collect taxes, duties, imposts, and excises, provided that they are uniform throughout the United States.
Yes, the Constitution outlines specific limitations on Congress's powers. For example, the Tenth Amendment states that any powers not delegated to the United States by the Constitution are reserved for the states or the people.
The expressed powers have been broadly interpreted by Congress and the Supreme Court, with many implied powers being derived from them. This interpretation has allowed for expanded Congressional power, particularly through the Elastic Clause, which grants Congress the ability to make laws necessary and proper for carrying out its enumerated powers.
