Threshold Constitutional Issues: Enumerated Powers

©2009 drkate



This essay takes a straight look at the enumerated powers of Congress as expressed in Article I, Section 8, Clauses 1-18, of the U.S. Constitution.  These are the powers specifically delegated to Congress by the people, with the remaining powers vested in the States and the people by the 10th Amendment.

Clause 18 has been used by Congresses  to expand federal power, and is the center of abuse of Congressional power right now.  Because Congress is doing Obama’s bidding, and vice-verse, this is an avenue for the abuse of Executive power as well.

The doctrine of ‘implied powers’ resulting from Clause 18 has been debated throughout history. It is of particular importance right now as both houses of Congress are dominated by socialist democrats and many cowardly republicans, the country is weakened by economic stress, and our military and national guard are deployed all over the world.

Someone let the horse out of the barn and our mission is to reign it in.  We must be smart in doing so.

Article I.  Section 8

The Congress shall have power to:

  1. lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
  2. To borrow money on the credit of the United States;
  3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
  4. To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
  5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
  6. To provide for the punishment of counterfeiting the securities and current coin of the United States;
  7. To establish post offices and post roads;
  8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
  9. To constitute tribunals inferior to the Supreme Court;
  10. To define and punish piracy’s and felonies committed on the high seas, and offenses against the law of nations;
  11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
  12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
  13. To provide and maintain a navy;
  14. To make rules for the government and regulation of the land and naval forces;
  15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
  16. To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
  17. To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And
  18. To 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, or in any department or officer thereof.

Clause 18 is  called the ‘necessary and proper’ clause, or alternatively, the ‘elastic clause’, and is a cause for much concern today as it leads to increased federal power.  It is this clause that the democrats and Obama are using to push a wide variety of government programs down our throats.

Historical Context and Development

According to this source,

This clause (18th) became the center of controversy from the early days of the nation when Alexander Hamilton and Thomas Jefferson tangled over the constitutionality of a national bank. Their arguments, in one form or another, persist to this day:

  • The “loose constructionists” (the Hamiltonians or Federalists) viewed Clause 18 as an opportunity to increase federal power.
  • The “strict constructionists” (the Jeffersonians or Anti-Federalists) believed that Clause 18 limited federal power. In their opinion, Congress could legitimately exercise only specified functions (Clauses 1-17); to do otherwise would be a violation of the Tenth Amendment, which specified that those powers not delegated to the federal government are reserved to the states or the people.

President George Washington sided with Hamilton and supported the establishment of the First Bank of the United States. The Federalist position regarding “implied powers” became part of the national fabric largely through the decisions of the U.S. Supreme Court under John Marshall. [emphasis added]

Jefferson, as President, had to change his viewpoint of implied powers, using them to accomplish the Louisiana Purchase which had no justification within the Constitution.

The essence of the discussion is whether the Constitution should be interpreted broadly or narrowly.  A narrow interpretation limits the government’s power, while  a broad interpretation accomodates the principle of implied powers, allowing the federal government to expand its authority in ways not specifically described in the Constitution.

Further complicating the exercise of Clause 18 is its relation with the delegable and non-delegable powers of Congress found in other sections and clauses of Article I.

Two important doctrines of constitutional law–that the Federal Government is one of enumerated powers and that legislative powers may not be delegated–are derived in part from this section. The classical statement of the former is that by Chief Justice Marshall in McCulloch v. Maryland: ”This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.”

That, however, ”the executive power” is not confined to those items expressly enumerated in Article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is found in decisions of the Court;…. But even when confined to ”the legislative powers herein granted,” the doctrine is severely strained by Marshall’s conception of some of these as set forth in his McCulloch v. Maryland opinion. He asserts that ”the sword and the purse, all the external relations and no inconsiderable portion of the industry of the nation, are intrusted to its government;” he characterizes ”the power of making war,” of ”levying taxes,” and of ”regulating commerce” as ”great, substantive and independent powers;” and the power conferred by the ”necessary and proper” clause embraces, he declares, all legislative ”means which are appropriate” to carry out the legitimate ends of the Constitution, unless forbidden by ”the letter and spirit of the Constitution.”

The most serious inroads on the doctrine of enumerated powers are, in fact, those which have taken place under cover of the doctrine–the vast expansion in recent years of national legislative power in the regulation of commerce among the States and in the expenditure of the national revenues. Verbally, at least, Marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in McCulloch v. Maryland. [emphasis added]


The government and Executive’s intrusion into health care, the nationalization of the auto, bank, energy or water industries and resources, free speech, and intrusion into other liberty interests of Americans has no enumeration in the Constitution.  This is notwithstanding the Supreme Court’s favorable view of a strong vigorous central government.  The government cannot find a reason or directive in the previous 17 clauses to justify these recent actions.

This is what we must make the left defend: what enumerated power in the Constitution allows Congress’ intrusion in to Americans’ liberty interests?  When pressed, the left cannot defend its positions and either backs down or calls the opposition racist. Press them on Constitutionality.

This reminds me of the youtube of Obama describing the Constitution as a “doctrine of  negative liberties:  it describes what the government can’t do, but doesn’t describe what the government must do.”

Obama’s view, and Congress’ actions, represent more than an abuse of power; they represent a fundamentally opposite view of the Constitution than we understand our Founding Fathers to have meant and what the Constitution means today.   They want to use the ‘necessary and proper clause’ to justify the concentration of power in the government and  divestment of power from the people…and this is a fundamentally different vision of governance than the American system.

Summary of Threshold Constitutional Series to Date

This article represents the third in a series regarding the threshold violations of the Constitution that appear to be happening before our eyes.  We now have serious threshold questions involved with:

  • Article I, Section 8   Congressional Enumerated powers
  • Article II, Section I   Eligibility criteria for POTUS
  • Article II, Section II  Article II Appointments

There are plenty of violations so far!  😯  😡

After completing specific essays on the remaining Articles of the Constitution, specific amendments, and related stories, this series will cover the proposed 28th amendment and other interesting strategies for constitutionally protecting, defending and restoring our Republic.

Continental Congress voting on Independence

Continental Congress voting on Independence

16 Responses to “Threshold Constitutional Issues: Enumerated Powers”

  1. 2 Nunly August 27, 2009 at 11:57 am

    One of the biggest concerns to me is the overabundant use of “czars” who are able to do Obama’s bidding without interference from Congress. They are being paid with our tax dollars and I am offended…no, furious, that my money is being spent to change our democracy to imperialistic rule.

    Great post, thanks for the history lesson!

    • 3 drkate August 27, 2009 at 12:02 pm

      Nunley, agreed. I did a post on czars a few days ago, called “Article II appointments”. I believe this is unconstitutional and there is a bill in congress to defund these czar positions and staff to prevent the formation of a shadow government!

    • 4 jbjd August 28, 2009 at 7:09 am

      Yes; I commented on drkate’s article that of all BO’s Constitutional violations – AFTER USURPING THE PRESIDENCY, THAT IT – this czar business bothers me the most. Governmental principle of checks and balances, anyone?

  2. 6 Mary Ellen (Nunly) August 27, 2009 at 10:09 pm

    I wasn’t surprised when I heard about Obama’s call to get reports on “fishy” people who were speaking against his health care bill. This is so much like the “Chicago Way”. Unfortunately, Obama was my Senator in Illinois, which is why I fought his campaign with all my might. I saw through that guy from the very beginning and I was a life-long Democrat.

    When I heard about the Congress demanding information from the insurance companies so they would give them all their data on what their profits were, how much they were paying their CEO’s, etc., I just shook my head…just like the Chicago thug politicians. I’m not a big fan of how the insurance companies do their business, but I’m also not a big fan of having our government bully private business and using shake-down tactics.

    What’s next? Is Obama going to start using the IRS to go after those who don’t agree with him?

  3. 7 Fernley Girl August 27, 2009 at 10:13 pm

    Several posts regarding the incorporation of the United States have shown up over at CW’s. I’ll provide one here, and one in the next post to avoid moderation. I’d love to see your interpretation of the information.

    • 8 drkate August 27, 2009 at 11:29 pm

      Thanks Fernley Girl, for these links. Looking at the first link there is much to explore…and the more one does, it keeps going back to FDR, the federal reserve before that, and other historic turning points. I think we are closer to knowing precisely where things changed for the worse, or cumulatively peaked; this all helps our strategy to get that horse back in the barn.

  4. 10 Michelle August 28, 2009 at 2:20 pm

    drkate-Thank you for all your insights regarding our Constitution, seeing all these abuses I think sometimes I’m losing my mind. If all Obama’s craziness was illegal when Nixon was President, why is it legal now? Abuse of authority.

  5. 12 Bill Bartmann September 17, 2009 at 6:42 pm

    This blog rocks! I gotta say, that I read a lot of blogs on a daily basis and for the most part, people lack substance but, I just wanted to make a quick comment to say I’m glad I found your blog. Thanks,

    A definite great read…:)


  6. 13 Bill Bartmann September 20, 2009 at 3:27 am

    Hey good stuff…keep up the good work! 🙂 I read a lot of blogs on a daily basis and for the most part, people lack substance but, I just wanted to make a quick comment to say I’m glad I found your blog. Thanks,)

    A definite great read.. <a href=";


  7. 14 Manderson September 25, 2009 at 12:58 am

    There’s good info here. I did a search on the topic and found most people will agree with your blog. Keep up the good work mate!

  1. 1 Tyranny in America: Federalism on Steroids « drkatesview Trackback on October 4, 2009 at 1:25 am
  2. 2 “Nobody Questions our Authority…” « drkatesview Trackback on October 23, 2009 at 12:03 am
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