CHAPTER 5

The Powers of the National Government

§5.1 INTRODUCTION AND OVERVIEW

The government created by the Constitution is national in the sense that its authority may be exercised throughout the nation and as a member of the family of nations. But it is also a limited government. This means that it may exercise only those powers granted to it by the Constitution. Powers not granted to the national government are, in the words of the Tenth Amendment, “reserved to the States respectively, or to the people.” This principle of federalism embodied in the Constitution serves a dual function. First, by allocating only certain powers to the national government, “the federal system preserves the integrity, dignity, and residual sovereignty of the States.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). Second, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Id. Thus, the states as well as individuals are the intended beneficiaries of federalism.

The bulk of the powers granted to the national government, sometimes referred to as enumerated powers, are described in Article I, §8; others are found in various provisions of the Constitution, as well as in certain constitutional amendments. In addition, the Court has recognized that the United States possesses certain inherent powers that place the national government on an equal footing with other nations. These implied powers, although not specifically enumerated, are nonetheless properly characterized as granted powers implicit in the constitutional conferral of nationhood.

The consequence of the related principles of limited government and federalism is that every exercise of national authority must be linked to a constitutionally granted power. Typically the Court is quite deferential when determining whether Congress has acted within the scope of a granted power. From an analytical perspective, the specific power must be identified and its scope defined. The question then becomes whether the exercise of authority at issue comes within that defined scope. For example, suppose Congress passes a statute that regulates the length of trucks engaged in interstate commerce. The most plausible power being exercised is the power over “commerce among the states” granted by Article I, §8, cl. 3. If this regulation comes within the defined scope of that power—a topic we will explore below—the congressional enactment is constitutional. If it does not, either another power must be identified or the law will be invalidated. Congress sometimes identifies the specific power under which a statute is being enacted. Yet Congress’s designation is not binding on a reviewing court. A court may thus rule that a federal law involved the improper exercise of a power Congress expressly relied upon, while conversely a court can uphold a law under a power that Congress never in fact invoked. “The ‘question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.’” National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2598 (2012) (quoting Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948)).

Although analytically there is nothing particularly difficult in this process of identifying possible powers and applying the defined scope of each, underlying the process is a significant philosophic debate regarding the nature of our federal system of government. From a nationalist perspective, the tendency is to give the granted powers a broad sweep, substantially diminishing the realm of powers reserved to the states or to the people. If, for example, the power over commerce among the states embraces every possible commercial transaction conducted within the United States, then what is “reserved” in this context becomes nothing more than a product of congressional inaction. On the other hand, if one adopts a state-oriented perspective, the tendency is to corral the scope of the granted powers in a manner that preserves a perceived principle of federalism or reserved powers, thus leaving more independent authority to the states. The tension between nationalism and states’ rights is inherent in every exercise of federal power and is reflected in the analytical models developed by the Court to measure the scope of that power.