Legislative Powers

Section 1. Legislative Powers

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Enumerated, Implied, Resulting, and Inherent Powers

Two important doctrines of constitutional law&emdash;that the Federal Government is one of enumerated powers and that legislative powers may not be delegated&emdash;are derived in part from this section. The classic statement of the former is by Chief Justice Marshall in McCulloch v. Maryland: “This government is acknowledged by all, to be one of enumerated powers. The principle, that itcan 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.” 1 Early in the history of the Constitution, however, Hamilton asserted that the “executive power,” textually committed to the President, is not confined to those items expressly enumerated in Article II.35 A similarly broad conception of “the judicial power of the United States,” as vested in the courts, is seen in Justice Brewer&#6 ;s opinion for the Court in Kansas v. Colorado.36 But, even the more narrowly worded delegation to the Congress of “legislative powers herein granted” is severely strained by Chief Justice Marshall&#6 ;s broad conception of some of these powers. In McCulloch v. Maryland, the Chief Justice asserted that “[t]he sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government”; 37 he characterizes “the power of making war, or levying taxes, or of regulating commerce” as “great substantive and independent power[s]”; 38 and he declares that the power conferred by the “necessary and proper” clause embraces all legislative “means which are appropriate” to carry out the legitimate ends of the Constitution, unless inconsistent “with the letter and spirit of the constitution.” 6

More about Enumerated, Implied, Resulting, and Inherent Powers

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of “resulting powers,” which are those that “result from the whole mass of the powers of the National Government, and from the nature of political society, [rather] than [as] a consequence or incident of the powers specially enumerated.” 40 Story references Marshall&#6 ;s opinion in American Ins. Co. v. Canter, 41 which states that “the constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.” 42 And from the power to acquire territory, Marshall continues, arises, as “the inevitable consequence,” the right to govern it.10 Subsequently, the Court has repeatedly ascribed powers to the National Government on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the “rights expressly given, and duties expressly enjoined” by the Constitution; 11 the power to impart to the paper currency of the government the quality of legal tender in the payment of debts; 45 the power to acquire territory by discovery; 46 the power to legislate for the Indian tribes wherever situated in the United States; 47 the power to exclude and deport aliens; 48 and to require that those who are admitted be registered and fingerprinted; 49 and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. Thus, in United States v. Curtiss-Wright Export Corp.,50 decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated.

Enumerated, Implied, Resulting, and Inherent Powers: Developments

Yet, as Justice Sutherland pointed out, these holdings do not directly affect “the internal affairs” of the nation, but instead relate principally to its peripheral relations. The most serious inroads on the doctrine of enumerated powers are, in fact, those that have taken place under cover of the other doctrines. This would include the vast expansion in recent years of the national legislative power under the authority to regulate interstate commerce and the power to provide for the expenditure of the national revenues. Still, some of the groundwork for these later doctrinal developments can be seen in Justice Marshall&#6 ;s language as quoted above from McCulloch.

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References

This text about Legislative Powers is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] 17 U.S. (4 Wheat.) 316, 405 (1819).

[Footnote 2] $$35 See discussion under Article II, § 1, cl. 1, Executive Power: Theory of the Presidential Office, infra. This assertion has since found support from decisions of the Court.

[Footnote 3] $$36 206 U.S. 46, 82 (1907).

[Footnote 4] $$37 17 U.S. (4 Wheat.) at 407.

[Footnote 5] $$38 17 U.S. at 411.

[Footnote 6] 17 U.S. at 421.

[Footnote 7] $$40 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1256 (1833). See also id. at 1286 and 1330.

[Footnote 8] $$41 26 U.S. (1 Pet.) 511 (1828).

[Footnote 9] $$42 26 U.S. at 542.

[Footnote 10] 26 U.S. at 543.

[Footnote 11] Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616, 618-19 (1842).

[Footnote 12] $$45 Juilliard v. Greenman, 110 U.S. 421, 449-450 (1884). See also Justice Bradley's concurring opinion in Knox v. Lee, 79 U.S. (12 Wall.) 457, 565 (1871).

[Footnote 13] $$46 United States v. Jones, 109 U.S. 513 (1883).

[Footnote 14] $$47 United States v. Kagama, 118 U.S. 375 (1886).

[Footnote 15] $$48 Fong Yue Ting v. United States, 149 U.S. 698 (1893).

[Footnote 16] $$49 Hines v. Davidowitz, 312 U.S. 52 (1941).

[Footnote 17] $$50 299 U.S. 304 (1936).

Tables of Contents

• Legislative Powers and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Legislative Powers and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)