Article 1, Section 8, of the Constitution of the United States of America: the Enumerated Powers of the Congress of the United States.

Posted by Pliny on November 13, 2009 – 10:36 am

constitution_quill_penThe powers of the Congress are limited by the Constitution, and are specifically enumerated in Article 1, Section 8 of that document, as clauses that are numbered one through eighteen. It is the eighteenth clause that the Congress has used in justification of its usurpation of powers that have not been granted them under those Specifically Enumerated Powers of the Congress.

Article 1, Section 8, Clause 18 reads:

“ 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 any Department or Officer thereof.”

NOTE: Amendment X reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.”

I refer you now to Judge Joseph Story, who was an Associate Justice of the Supreme Court of the United States; a Constitutional Scholar; an author of extensive writings on the Constitution; and a Constitutional Professor. Judge Story wrote of the eighteenth clause of the Enumerated Powers of the Congress, and held that it acted to clarify and facilitate the process by which appropriate laws, necessary to the implementation of clauses one through seventeen, could be authored and passed.
By my understanding of his analysis, Judge Story did not allow that Clause 18 was an open-ended invitation for the Congress to empower itself beyond those 17 Enumerated Powers, which it actually has done on numerous occasions! For example, the entry of the Congress into the provision of Health Care exceeds those Enumerated Powers, and it justifies its action under the guise of the 18th Clause, which is commonly referred to in the vernacular as: “The Necessary and Proper Clause.”
Congress may not exceed the Specifically Enumerated Powers by cloaking such excess in the 18th Clause’s Necessary and Proper admonitions, it is not allowed by the Constitution to essentially create for itself Constitutional Powers that are not specifically enumerated in Article 1, Section 8.
A reading of the 10th Amendment seems to vindicate Judge Story’s analysis. Powers that are not specifically delegated to the United States (by inference, the Federal Congress), nor forbidden to the States, resides therefore in the States, or more specifically with “We the People.”

There is an interesting footnote to this discussion on the Powers of the Congress of the United States. A Democrat Senator was asked how he could reconcile the entry of the Federal Government, into the Health Care Arena, since The Constitution, under the Enumerated Powers of Congress, apparently does not mention that specific power. The Senator’s response was highly indicative of either his lack of veracity, or his lack of understanding of the Constitution. To make his point, he referred to the Twelfth Clause, of the Enumerated Powers, which reads:

“To raise and support Armies, but no appropriation of Money to that Use shall be for a longer Term than two years.”

The Senator said this, and I must paraphrase: “The Congress has the Enumerated Power to raise Armies, and it has passed laws in the past that called for a “Drafting” of recruits.” His argument was that the 12th clause never mentioned a Draft, and yet the Congress created one! Therefore, he contends that Health Care is not mentioned, but is subject to the Powers of Congress, just as the Draft was not mentioned, but a legitimate subject!
His argument is specious. The “Necessary and Proper” Clause allowed for the passage of the Draft, because it specifically allows the passage of laws, as long as they facilitate the exercise of one of the 17 Enumerated Powers, the 12th of which is the authorization for Congress to raise armies. In order to help the Congress to exercise its legitimate Constitutional Power to raise an army, the 18th Clause allowed the Congress to institute the draft to accomplish that.
Pliny

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