FEDERALISM AND FEDERAL POWER GENERALLY

a. No general police power:  In other words, there is no general federal police power, i.e., no right of the federal government to regulate for the health, safety or general welfare of the citizenry. Instead, each act of federal legislation or regulation must come within one of the very specific, enumerated powers (e.g., the Commerce Clause, the power to tax and spend, etc.).

i. Tax and spend for general welfare:  Congress does have the right to “lay and collect taxes … to pay the debts and provide for the … general welfare of the United States. … ” (Article I, Section 8.) But the phrase “provide for the … general welfare” in this sentence modifies “lay and collect taxes … to pay the debts. … ” Thus the power to tax and spend is subject to the requirement that the general welfare be served; there is no independent federal power to provide for the general welfare.

2. Review of government action:  Thus for an action by the federal government to be valid, it must meet two distinct requirements: (1) it must fall within one of the powers specifically enumerated within the Constitution as being given to the federal government; and (2) it must not violate any particular limitation on federal power given in the Constitution (e.g., the limitations contained in the Bill of Rights).

Example: Congress, stating that it is acting on behalf of the general welfare of U.S. citizens, passes a law making it a federal crime for any person to read any type of pornographic material in his house. Unless the measure can be shown to fall within the commerce power (infra, p. 23), the measure will almost certainly be found by the courts to be invalid, since it is not within any power specifically given to the federal government by the Constitution (and since the power to legislate “on behalf of the general welfare” is not one of the enumerated powers). (Also, the measure will probably be found to violate one or more specific limitations in the Bill of Rights, including the “right of privacy” inferred by modern Supreme Court decisions. See Stanley v. Georgia, infra, p. 592.)

C. Specific powers:  The principal grant of specific federal powers is in Article I, §8. That section contains 18 clauses which grant power to Congress. (Grants of power to the judicial and executive branches are contained in other parts of the Constitution.)

1. Congressional powers:  Among the more important powers given to the Congress by Article I, §8, are the power to:

a.  lay and collect taxes;

b.  provide for the defense of the country;

c. borrow money on the credit of the U.S.;