Enumerated Powers & The Necessary and Proper Clause

The Enumerated Powers of Congress

The “enumerated powers” are a list of powers granted to Congress under the United States Constitution. These powers appear largely in Article I, but some powers appear in other constitutional provisions. A number of amendments name additional powers to those that were originally given, as well as adding the power to enforce the amendments through appropriate legislation. Some of the enumerated powers refer to how Congress can exercise its powers; others refer to the substance of the powers Congress can exercise.

Enumerating certain powers was meant to limit the powers of Congress to national objects only and to protect the powers of the states against encroachment by the federal government. For example, Congress can tax and spend for the general welfare. The scope of the general welfare clause is critical—if general welfare is viewed as a distinct power, that power is exceptionally broad. In essence, Congress appears to have the power to tax for any reason that might be beneficial to the United States. This approach would appear to swallow the theoretical limitations on congressional power. However, the Congress under the Articles had likewise been empowered to defray the expenses “incurred for the common defence or general welfare.” Madison had argued that the meaning of this clause was just as restrictive under the new Constitution as it had been under the old Articles. In Federalist No. 41, he vehemently denounced those Anti-Federalists who warned that the “general welfare” clause would be interpreted as an additional grant of power, independent of the enumerated powers: “No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.” If the general welfare clause is understood as relating only to the enumerated powers Congress is given by the Constitution, then Congress’ powers may be reasonably limited.

Limited Government

Hints that Congress’ power is limited can be found among some of the powers that the Constitution specifies. For example, Congress may “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.” The Necessary and Proper Clause suggests that not all powers exercised by Congress need to be explicitly named in the Constitution. Rather, every piece of legislation must be at least instrumental to a power delegated to Congress. The clause arguably is consistent with the stance that Congress has broad power to act within those powers expressly delegated to it, and it has no power to act regarding powers not delegated to it.

Additionally, though congressional power is limited, it is broad. Congressional power extends to matters that are the domain of the federal government. For example, Congress can borrow money on the credit of the United States and can establish federal courts in addition to the Supreme Court. These are functions that are essential to the creation of a United States. It would be nonsensical to delegate these functions to any particular state.

The Madisonian Perspective on Enumerated Powers

Very early in the debates at the Constitutional Convention, Madison said:

that he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national legislature, but had also brought doubts concerning its practicability. His wishes remained unaltered; but his doubts had become stronger. What his opinion might ultimately be, he could not yet tell. (May 31)

The course of the Convention’s proceedings seemed to reconcile Madison fully to the enumeration. The vast majority at the Convention believed an enumeration of powers was essential to keep the federal government within proper bounds. During the ratifying period, however, several Anti-Federalists alleged that the wording of the enumeration did not sufficiently constrain Congress’ powers, which ultimately resulted in the 10th Amendment, which specifically reserved to the states powers not grated to the federal government. In the face of Antifederalist opposition, Madison steadfastly maintained that the jurisdiction of the federal government “is limited to certain enumerated objects.” (Federalist No. 14) During Virginia’s Ratifying Convention, Madison argued that “the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.” (June 6, 1788)

In other words, Madison believed that the meaning of the 10th Amendment was already implied in the enumeration of powers: “There cannot be a more positive and unequivocal declaration of the principle of the adoption—that every thing not granted is reserved. This is obviously and self-evidently the case, without the declaration.” However, other members of the ratifying conventions were less certain and insisted that the danger of an encroaching Congress was sufficient enough that the principle of limitation should not be left to implication. The 10th Amendment was added to the Constitution at the insistence of many states that wanted to ensure that Congress would exercise only those powers named in the Constitution.