What are some of the enumerate expressed powers granted to the Congress in Article I Section 8 of the Constitution?

One way to limit the power of the new Congress under the Constitution was to be specific about what it could do. These enumerated, or listed, powers were contained in Article I, Section 8—the great laundry list of congressional chores. These included: 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. But the very end of this list contained one more power: to make all laws “necessary and proper” to carry out the enumerated powers. Also known as the Elastic Clause, this phrase allowed Congress to stretch its enumerated powers a bit to fit its needs. For instance, in McCulloch v. Maryland (1819), the Supreme Court ruled that under the Necessary and Proper Clause Congress had the power to establish a national bank to carry out its powers to collect taxes, pay debts, and borrow money. Broad interpretation of the Elastic Clause has allowed expanded Congressional power.

Federalism content written by Linda R. Monk, Constitutional scholar

Article I, Section 1 vests all legislative powers of the federal government in a bicameral Congress. As explained above, this is often read to include a principle that legislative power cannot be delegated to the other branches, to individual members of Congress, or to private actors. Despite the Supreme Court’s lack of direct enforcement and Congress’ transfer of power to administrative agencies within the Executive branch, I shall explain that the non-delegation principle has stubbornly persisted precisely because of its centrality to a republican form of government. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002).

The Constitution places the lawmaking powers of the government in a representative legislature. Following John Locke, the Framers recognized that the most legitimate form of government and the one providing the greatest security to liberty and property would vest the lawmaking power in “collective bodies of men.” John Locke, Second Treatise of Government § 94. James Madison and others frequently emphasized that lawmaking must be done by a sufficiently large group, not by an individual or “cabal.”

For the Framers, lawmaking by a representative bicameral Congress would serve a number of purposes. First, laws made by the people’s representatives would have legitimacy derived from the consent of the people. Second, by requiring members of Congress to deliberate and to compromise, the difficult process of lawmaking would promote laws aimed at the general good and equally applicable to all people. Third, laws made by a collective legislature would be more likely to avoid the dangers of small factions and special interests. Collective lawmaking would not be perfect, but, along with other constitutional safeguards, would minimize the dangers of oppressive legislation.

These features reinforce why “all legislative powers herein granted” are vested in Congress. The centrality of representative, legislative power suggests constitutional limits on the delegation of legislative power to the Executive, which lacks the collective multi-member representation necessary for lawmaking.

The Supreme Court has consistently reinforced the principle of non-delegation, recognizing that Article I, Section 1, of the Constitution “vests ‘all legislative Powers herein granted . . . in a Congress of the United states.’ This text permits no delegation of those powers . . . ” Whitman v. American Trucking Associations, Inc. (2001). In Panama Refining Co. v. Ryan (1935), it stated “in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend.”

The non-delegation principle serves as an important textual and structural limit on the federal government. Congress has limited and enumerated powers that confine the overall scope and power of the federal government to better preserve individual liberty. The non-delegation principle reinforces these limits. If widescale delegation is permissible, executive agencies have discretion to increase the reach of the federal government without going through the difficult process of bicameralism and presentment. Moreover, non-delegation reinforces separation of powers. Open-ended delegation allows lawmaking to be combined with law execution (and adjudication) in executive agencies in a manner that raises questions about political accountability, constitutional limits, and due process.

Yet in practice, the non-delegation principle has been enforced largely in the breach. Since the New Deal, Congress has increasingly delegated open-ended authority to executive branch agencies. Despite consistent recognition of a principle of non-delegation, the Supreme Court has tolerated a significant transfer of power from Congress to executive agencies to make regulations. One reason for this is the difficulty of defining an unconstitutional delegation. The Executive power includes the power to interpret and to implement the law when applying it to particular circumstances; however, the Executive power does not include the power to make the law.

This essay is part of a discussion about Article I, Section 1 with William N. Eskridge, Jr.John A. Garver Professor of Jurisprudence, Yale Law School. Read the full discussion here.

As Justice Black famously explained, “[T]he President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. . . . And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States.’” Youngstown Sheet & Tube Co. v. Sawyer (1952). The difficulty arises in determining when the Executive is legislating, which is impermissible, and when the Executive is implementing statutory directives.

The Court has also declined direct enforcement of the non-delegation doctrine because it has analyzed non-delegation as a structural principle that should be checked by competition between Congress and the President. As Justice Scalia explained, “Congress could delegate lawmaking authority only at the expense of increasing the power of either the President or the courts. . . . Thus, the need for delegation would have to be important enough to induce Congress to aggrandize its primary competitor for political power.” Mistretta v. United States (1989) (Scalia, J., dissenting).

Why would Congress delegate so much power to the President, its rival for political power? Increased political polarization and the desire to avoid responsibility for difficult choices provide some explanation. In addition, delegation may empower members of Congress to control administration by influencing administrative agencies, allowing them to enhance their individual power through collusion with agencies. See Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015). Delegation may unravel the competitive tension between Congress and the President, undermining an important structural check on legislative power.

Widespread delegation to the executive has weakened Congress as an institution and made it difficult for Congress to check the Executive. The unitary Executive possesses all of the structural advantages of quick action over Congress. Once authority has been delegated, Congress has fewer mechanisms to oversee the Executive.

Non-delegation remains “a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark (1892). A few justices have argued for greater enforcement of the non-delegation doctrine to provide a check on executive branch agencies exercising delegated power. For instance, Justice Thomas has written that the judiciary’s failure to enforce the nondelegation doctrine comes at the “cost [of] our Constitution and the individual liberty it protects.” Department of Transportation v. Association of American Railroads (2015) (Thomas, J., concurring in the judgment).

Given the importance of non-delegation, courts should provide greater scrutiny of delegations of legislative power. Yet the non-delegation principle cannot depend solely on judicial review. Congress is vested with the legislative power. Article I, Section 1 of the Constitution provides for the essential and central role of Congress in a republican form of government, even after the rise of the modern administrative state.

Some people are “fair weather federalists” who only assert the virtues of federalism when they lack the votes in Congress for the national policies they prefer. I think this is a mistake. The federalism of our constitutional order has yielded some enormous advantages for protecting the rights retained by the people. Let’s see why.

Federalism Leaves Most Legal Issues to the States

If the federal government only has the power to provide for the common defense as well as to protect the free flow of commerce between states, along with a few other specific tasks, most of the laws affecting the liberties of the people will be made at the state level. This would include the regulation of most economic activity as well as what are today called “social issues.”

In the 1824 case of Gibbons v. Ogden, Chief Justice John Marshall referred to these reserved state powers as “that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves.” For example, “inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.”

Marshall then affirmed that “no direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes.” But he immediately made clear that by “national purpose” he meant “it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.”

Federalism Makes Regulatory Diversity Possible

Given widespread disagreement about both economic and social policies, lodging this “immense mass of legislation” in the states enables a diversity of approaches to develop. Sometimes states are characterized as “laboratories of experimentation,” a paraphrase of a dissenting opinion by Justice Louis Brandeis in the 1932 case of New State Ice Co. v. Liebmann. In his dissent, Brandeis described how a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

When it comes to economic regulation, so long as they remain within the proper scope of their power to protect the rights, health and safety of the public, fifty states can experiment with different regimes of legal regulation so the results can be witnessed and judged rather than endlessly speculated about. States will be somewhat inhibited in imposing restrictions on businesses by the threat of regulatory competition. Other states will be induced to offer more receptive “business climates” to entice businesses to relocate. Businesses small and large can decide to relocate if they deem a particular scheme of regulation to be too onerous.

Critics of this competitive dynamic disparage this as a “race to the bottom” in which states are prevented from enacting beneficial regulations. Of course, it is possible that some states may enact “inferior” regulations to attract business seeking to lower their costs of production. But it is far more likely that local electorates will demand the sorts of “reasonable regulations” they witness other states successfully implementing at a reasonable cost.

Foot Voting Empowers the Sovereign Individual Citizen

When it comes to liberty, the competition provided by federalism empowers the sovereign individual. Because one’s vote in an election is swamped by the ballots of millions of others, it is simply irrational for most persons to invest too heavily in the time and resources to learn what it takes to vote wisely. Not only is it next to impossible to influence any particular policy by casting one’s individual ballot, it is also impossible to separate that policy from others in the “package” offered by one of the two contending political parties.

By contrast, as Ilya Somin explains, when voting with one’s feet by moving to another city or state, one has far greater control over the results. See Ilya Somin, Democracy and Political Ignorance 119-54 (2013). Each person can individually control the state in which they live by selecting from among fifty choices, not just two. And they can witness the economic opportunities that result from different state polices. In a federal system, people are then free to move to another state for a better job, or for a cleaner and safer environment. Because their decisions will have tangible effects on their lives, it is far more rational for individuals to investigate the difference between states than it is the difference between political candidates.

In short, what prevents a legislative “race to the bottom” in a federal system is the freedom of sovereign individuals to race to the states with a better package of results. This dynamic is much less powerful at the national level, because individuals are much more reluctant to leave their country than their state.

This essay is part of a discussion about Article I, Section 8 with Heather Gerken, J. Skelly Wright Professor of Law, Yale Law School. Read the full discussion here.

The Importance of Keeping Social Issues Local

When it comes to social policy, the preferences of individuals loom even larger than with economic policies. Not only is it difficult to identify the objectively “correct” social policy, it is not clear that such policies even exist. Different people subjectively prefer to live in different types of communities, not only due to differing opinions about morality, but simply as a matter of taste. Given that, by their nature, communities must be one type or another, it is best to have as many different communities from which to choose as possible to satisfy the range of individual tastes, preferences, and moral commitments.

A rich diversity of preferred lifestyles can only be achieved at the local level. As with economic policy, sub-national competition between social policies in a federal system imposes a salutary constraint on state governments by threatening an exodus of dissenting citizens to other states. On the positive side, with fifty states to choose from, it is far more likely that a person can find a state or municipality with a social environment in which they are more comfortable than if one social policy is imposed on the United States as a whole.

The cost of exiting one state for another is far lower than exiting the United States when one disagrees with a national policy. Consequently under a federal system the citizen’s enhanced power of exit not only provides a comparatively greater constraint on legislative power that is reserved to the states, it empowers individuals to achieve their own purposes far more effectively than relying on their ability to influence national policy by their vote, or by leaving the country of their birth.

In all these ways, liberty is more robustly protected by confining lawmaking to the state and local levels in a federal system, than moving all such decisions to the national level.

Federalism Avoids a Political War of All Against All

There is another, and potentially even more powerful, way that federalism protects the individual sovereignty of the people. When any issue is moved to the national level, it creates a set of winners and a set of losers. Because the losers will have to either live under the winners’ regime or leave the country, everyone will fight much harder to achieve their result or, failing that, to block the other side from achieving its goal.

Consequently, the more issues that are elevated to the national level, the more contentiousness, bitterness, and “gridlock” develops as people fight ever harder not to lose. The result is a political version of what Thomas Hobbes called a “war of all against all.”

We can avoid this by ensuring that as many issues as possible are handled at the personal level of the individual person, which is why individual liberty is the ultimate means to the pursuit of happiness for people living in society with others. Because of the competitive processes I have already described, reinforced by federal checks on state power, such individual liberty is far better protected at the more local level than at the national.

Again, it is not that the social and economic policy issues protected by a diversity of state regulations are less important than those handled at the national level. To the contrary, the more important the issue, the more likely it will engender a political war-of-all-against-all to avoid having another’s social policy imposed on you. So, the more important the issue, the less is it fit to be decided at the national level.

For all these reasons, the United States has been a far more prosperous and contented country because of its federal system.