Enumerated versus Implied powers of the U.S. Constitution

Enumerated powers are powers given to Congress and clearly mentioned and defined in the U.S. Constitution. Implied powers means that, while not specifically mentioned or defined, it may be inferred by the remaining document.  

An example of implied powers is noted by the following passage from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Here are listed three natural rights: life, liberty, and pursuit of happiness.  There are many other natural rights, although they are merely implied in this document.  Since natural rights was a common theme at the time, the founding fathers figured they didn't need to list them all because they "assumed" people would know the rest.

However, most states were not willing to sign on to (ratify) the constitution without a specific enumerated list of rights and an enumerated list of powers granted to the federal government.  It was for this reason that the Bill of Rights was created.  They feared that without these 10 amendments state and individual rights, which are implied by the Declaration of Independence and Constitution, might not be respected if they weren't specifically included within the Constitution.

So, the first 10 amendments were added and the Constitution was ratified by the colonies.

However, there was still no way that the founding fathers could list every enumerated power, and so many continued to be implied.  When Congress makes a law regarding an implied power, this may result in a conflict between the states and the federal government.  The resolution of such conflicts is the responsibility of the Supreme Court, which has the sole purpose of making sure all laws passed by Congress are Constitutional.

A perfect example of an early disagreement between the states and the federal government regarding an implied power occurred during the presidency of George Washington, when Washington used the power of the Executive Branch for something that was not specifically enumerated in the Constitution.

Alexander Hamilton wrote a bill that made it through both branches of Congress.  The bill was opposed by Thomas Jefferson on the grounds that the Bank of the United States was not authorised by the Constitution.  Washington agreed,  but he sided with Hamilton's argument in favor of the bank.

The argument used by Washington was that, since an enumerated power granted Congress the right to collect taxes, it was reasonable to "assume" that Congress could also create a bank to hold those taxes and act as a bank for the government.

The most recent example Congress and the president using implied powers was the passage of Obamacare.  While republicans used the 10th amendment, the Commerce Clause and the fact that the federal government can't force you to buy something as an argument in support of the unconstitutionality of Obamacare, the Supreme Court ruled the implication was that it was a tax and therefore constitutional.

So even though healthcare is not covered under an implied power, and even though the 10th amendment reserves the right to govern on healthcare to the states, the Supreme Court decided it was covered as an "implied power" of Congress.  

Three advantages of Federalism, and why it should be respected

One of nice things about the United States (nice if you are a traditionalist) is Federalism, whereby two or more governments share powers over the same geographic region.  The U.S. Constitution grants certain powers to the federal government and the state governments.

For example, under Article I, Section 8 of the Constitution, grants the U.S. Congress certain powers, often called enumerated powers, such as coining money, regulating interstate trade and commerce, declaring war, raising an army and navy and to establish laws of immigration.

Things the states cannot do are listed in Article I, Section 9. Among these, states are forbidden from coining money, entering into treaties, charging duties on imports and exports and declaring war.

Under the 10th Amendment, powers not enumerated by the Constitution, such as requiring drivers license, defining and creating rules for marriage, creating laws regarding abortion, creating and maintaining an educational system, or powers not specifically enumerated in the Constitution are left to the states or the people to decide.  

Federalism was an ingenious plan for a couple reasons.  

1.  It gave the Federal government just enough power to establish and maintain a stable infrastructure, such as creating and maintaining a postal service, a military, to regulate commerce to create a stable economic environment, etc. 

2. It prevented the Federal government from making laws that would infringe upon state and natural rights.  In essence, it told Congress what it could rule upon (enumerated powers) but what it could not rule upon (10th amendment). 

3.  The founding fathers thought Federalism was a good way to prevent the federal government from passing laws that created risky programs that might bankrupt the nation.  They knew it was okay for a state to create risk because the federal government would be able to bail out the state.  Yet if the federal government took a significant risk and failed (and Obamacare is a great risk), protections created by the Constitution would likewise fail.  It is for this reason only states are allowed to create laws regulating abortion, healthcare, education, etc. If one state does well, others may copy.  Yet if one state fails, others won't copy.  That's a major advantage of Federalism, allowing sort of a trial and error system within the states. Yet if the federal government fails, who will bail us out?  The founders thought of this, and that's why they created a system of Federalism. 

Bottom line: Federalism was a system to limit the scope and power of the Federal government, and to protect state and individual rights. It was meant to prevent the federal government from getting out of control.

How to solve the abortion issue

Regardless of what side of the issue the Federal government comes out on, half the country is going to be outraged.  The simplest solution here is to not take sides at all, and if the U.S. Constitution were followed, this is how the argument would be resolved.

Of course, this solution will neither be popular among conservatives nor liberals. Conservatives want to use the Federal government to make abortions illegal. Liberals want to use the Federal government to make abortions legal.  Roe versus Wade, in effect, was a success by liberals.

However, both the conservative and liberal positions are abuses of Federal power, and both unconstitutional.  So, in this regard, so too was the 1972 Roe -v- Wade ruling in favor of abortion.

Article II Section 8 of the Constitution gives 30 powers to the U.S. Congress, and these are in essence named the enumerable powers of government.  Some of the things delegated to Congress include standard weights and measures, coining money, post offices and post roads, the protection of intellectual property, and a national defense. Beyond these and a few other very specific items, there was not much for which the federal government was responsible.

The Constitution says nothing about murder, manslaughter, or any other acts of violence.  The Constitution only gives the government a right to make laws regarding counterfeiting, piracy, treason, and slavery.  It does not have a right to rule on abortion either.  Therefore, on this ground alone, the Rowe-v-Wade ruling is illegal.

If, for example, the government were to make infanticide legal, it would not be maintaining a republican form of government, which is required by the Constitution. If the Federal government were to rule on abortion, ideally it should err on the side of life, liberty, and pursuit of happiness, natural rights of the infant that are protected by the Constitution.

Regardless, anything not delegated to Congress is delegated, by the 10th amendment, to the states, or to the people, to decide. Therefore, the legal means of resolving the abortion issue is to let the states decide the manner.

In essence, if the law is followed, it would go back to the way it was prior to 1972, where some states had laws banning abortion, and some states had laws supporting abortion.  Those who continued to disagree with state law deserved the right to educate and fight for change.

Removing the power of the Federal government can be done with a massive educational movement, a majority in favor of such a movement in Congress, and a signature of the President. This, it would seem, would be much simpler than waiting for the Supreme Court to to repeal Rowe-v-Wade.

Although, the simplest means would be to regard the laws already on the books.

The thirty enumerated powers

In order to prevent the Federal government from getting too big, and therefore gaining too much influence over the people, the founding fathers created Article II Section 8 of the Constitution, which gives congress only 30 enumerated powers.

So, what are enumerated powers? They are those powers specifically delegated to Congress by the U.S. Constitution.  That means that Congress only has the right to rule on these 30 things.

Article II section 8 lists all of these powers:

1. To collect taxes in order to provide a common defense and general welfare of the people
2. To borrow money on the credit of the United States
3. To regulate commerce with foreign nations, among the several states, and with Indian tribes
4. To establish an uinform Rule of Naturalization, and uniform laws regarding bankruptcies within the United States
5. To coin money, regulate the value therof, and fix the standard of weights and measures.
6. To provide punishment for counterfeiting the securities and Coin of the U.S.
7. To establish a post office 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 Piracies and Felonies committed on the high Seas, and Offences 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, dock-Yards, 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.
19. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws:and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
20. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
21. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
22. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
23. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
24. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
25. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.
26. New States may be admitted by the Congress into this Union;
27. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
28. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress
29. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment…
30. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
31. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Basically, Article II Section 8 limits the power of government to just a few things, including: standard weights and measures, coining money, post offices and post roads, the protection of intellectual property, and a national defense. Beyond these and a few other very specific items, there was not much for which the federal government was responsible.

These powers have obviously been loosely regarded by both Congress and the Supreme Court.  However, what is not listed here Congress has no legal authority to rule upon.  For all other issues Congress must refer to the 10th amendment: 

The 10th Amendment:  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 to the people

So by the law, the Congress has no right to make any laws regarding punishment except for the counterfeiting of money, treason, and impeachment.  All other laws regarding punishment, including murder and abortion, are reserved to the states, and therefore the people, to decide.

It was written this way to protect the rights of the states, and to limit the scope and power of the Federal government over the states. Another reason for this was to give states unlimited power, although they had limited funds to which to run government programs, as only the Federal government reserved the right to print money.

This system also allowed for the states to be risky with new programs, with other states copying the programs of other states that worked.  When a state's program failed, the other states would bail that state out.  If the Federal government failed, there would be on one, other than another country or group of countries (such as the United Nations) to bail it out. So this prevented the Federal government from taking unnecessary risk.

According to Kevin Price, "at renewamerica.com, "What are 'enumerated powers' and why do they matter, "The Founders of this republic believed in the dispersion of power. They did such in order to maximize individual freedom and to protect the power of the states. This unique system helped to limit the amount of money taxpayers spent on programs they disagreed with because on the federal level, all the enumerated powers were beneficial to all. Meanwhile, people had the power and freedom to move from state to state in order to find a government that best suited their needs. That power to "vote with their feet" kept most state government very small."

According to the Constitution, the Congress has no right to make any law regarding retirement, insurance, health, nor education, leaving these institutions up to the states, and therefore the people, to decide.

In other words, the size, scope and influence of the current government in the United States is illegal and must be scaled back.