Enumerated Powers: Congress's Ability To Act

The United States Constitution grants enumerated powers to Congress, limiting its authority and ensuring the government's power comes from the people. Enumerated powers are explicit powers that are listed in Article I, Section 8 of the Constitution, including the power to tax, borrow money, regulate commerce, coin money, and declare war. These powers are interpreted broadly, with Congress deriving implied powers from them, such as the ability to establish a national bank. The Necessary and Proper Clause, or Elastic Clause, allows Congress to make laws necessary for executing its powers, further expanding its authority. The Enumerated Powers Act, a proposed law requiring bills to cite their constitutional authority, has not been passed. This topic explores the balance between federal and state power, with federalism limiting Congress's power, but also giving way to demands for national action.

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The power to tax and spend

The interpretation of the Spending Clause has been a subject of debate since the 1790s, with differing views on the scope of spending power and the meaning of "general welfare". James Madison and the Democratic-Republicans argued for a more restricted interpretation, believing that the Clause authorises spending only when it implements other powers granted to Congress in Article I. On the other hand, Alexander Hamilton and the Federalists took a broader view, advocating for greater flexibility in the use of the Spending Clause.

However, the use of the Spending Clause has also raised concerns about federal overreach and standardisation of policy. Some scholars argue for tighter limits on federal power, especially in a large and diverse country like the United States, where federally imposed policies may not always align with the needs and preferences of individual states. This debate highlights the complex nature of interpreting and applying the Spending Clause in a dynamic and evolving nation.

The power to borrow money

The US Constitution grants Congress enumerated powers, which are specific powers that are explicitly stated. These are outlined in Article I, Section 8, and include the power to borrow money. This power allows Congress to borrow money on the credit of the United States, creating a binding obligation to repay the debt as stipulated.

Article I, Section 8, Clause 2, also known as the Borrowing Clause, grants Congress the authority to borrow money. This clause states that Congress has the power to "borrow Money on the credit of the United States". This means that Congress can take out loans or issue debt on behalf of the country. The ability to borrow money is crucial for the government to function, as it allows the federal government to finance its operations and fulfil its obligations when tax revenues are insufficient.

However, the power to borrow money also comes with responsibilities and limitations. When Congress borrows money, it creates a binding obligation to repay the debt. The terms of the loan, including interest rates and repayment schedules, are agreed upon, and Congress must adhere to these terms. Any changes to the agreed-upon terms, such as modifying repayment dates or defaulting on the loan, can have significant consequences for the US government's creditworthiness and reputation in the global financial market.

The power to regulate commerce

The interpretation of the Commerce Clause has been a subject of debate and has evolved over time. While the plain meaning of the clause suggests a limited power to regulate commercial trade between persons in one state and those outside of it, the Supreme Court has interpreted it more broadly. For much of US history, courts have taken a broad interpretation of the Commerce Clause. In Gibbons v. Ogden (1824), the Supreme Court held that intrastate activity could be regulated under the Commerce Clause if it is part of a larger interstate commercial scheme.

The Court's interpretation of the Commerce Clause became even broader in the late 1930s, with the NLRB v. Jones & Laughlin Steel Corp case, where the Court recognised broader grounds upon which the clause could be used to regulate state activity. The Court held that any activity with a "substantial economic effect" on interstate commerce or whose "cumulative effect" could impact such commerce was subject to congressional regulation under the Commerce Clause. This broad interpretation continued until the mid-1990s, with the United States v. Lopez case, where the Supreme Court attempted to curtail Congress's broad legislative mandate under the Commerce Clause by adopting a more conservative interpretation.

In recent decades, the Supreme Court has placed some limits on Congress's power to regulate commerce. In United States v. Lopez and United States v. Morrison, the Court held that gun possession laws and laws regarding sexual violence were beyond Congress's authority to regulate commerce. However, in Gonzales v. Raich, the Court confirmed Congress's authority to regulate medical marijuana, indicating that the effect of these limiting cases may be relatively modest.

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The power to establish post offices

The Postal Clause states that Congress has the power " [t]o establish Post Offices and post Roads" and " [t]o make all Laws which shall be necessary and proper" for executing this task. This includes the authority to regulate the entire postal system of the country, designate certain materials as non-mailable, and pass statutes criminalizing abuses of the postal system, such as mail fraud and armed robbery of post offices.

The Postal Clause also allows Congress to appropriate land for postal purposes and designate certain materials as non-mailable. This power has been used to exclude obscene materials from the mail, such as through the Comstock Act of 1873, which prohibited obscene, lewd, or lascivious books, pamphlets, pictures, and other indecent materials from being mailed through the United States Postal Service (USPS).

The power to declare war

The inclusion of this power in the Constitution was a deliberate choice by the Founding Fathers to limit the influence of the President and prevent unilateral decisions to enter into armed conflicts. By vesting the war-making powers in Congress, the framers of the Constitution intended to ensure that declarations of war would be subject to careful debate in open forums among the public's representatives. This was seen as a crucial safeguard for a republic, where the power to make war was not concentrated in the hands of a single individual but rather shared among the people's elected officials.

While Congress has the sole power to declare war, the President, as Commander-in-Chief of the armed forces, derives the power to direct the military after a Congressional declaration of war. This division of powers, as outlined in Article II, Section 2 of the Constitution, requires cooperation and coordination between the President and Congress in matters of national defence and security.

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