Enumerated Powers and the Constitution

Doug Fiedor


The very first sentence in the body of the United States Constitution states clearly: "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."

The U.S. Supreme Court had often stated that every word in our Constitution holds equal weight. Therefore, when one reads the words "All legislative Powers" granted to the federal government "shall be vested in a Congress," a couple very inconvenient questions quickly come to mind: How is it that over one hundred federal agencies are also allowed to make law? And, how can the President and Supreme Court make legally binding law --- they call those laws rules, regulations, and executive orders?

James Madison, the Father of our Constitution, clarified the authority of the federal government in the Federalist Papers #45:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

If the federal government's powers are "few and defined," how, then, can the federal government make laws on subjects that are not defined (duties tasked to it) by the Constitution? Madison continues:

"The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States."

The Supreme Court agreed. Back in 1819, Chief Justice Marshall (McCulloch v. Maryland) ruled: "This government is acknowledged by all, to be one of enumerated powers."

Yet, today the States must ask the "permission" of the federal government to do almost anything important. Clearly, then, something went wrong.

We see, then, that there were two important doctrines of constitutional law: that the federal government is one of enumerated powers and that legislative powers may not be delegated, because all legislative Powers are delegated by the Constitution to Congress. Also, according to Madison: "The powers delegated by the proposed Constitution to the federal government are few and defined."

So, what happened?

Part of the problem started in 1825 (Wayman v. Southard) when Congress unconstitutionally delegated the power to the federal court to establish its own rules of practice. Chief Justice Marshall agreed that the rule-making power was a legislative function and that Congress could have (should have!) formulated the rules itself. But heck, these were court rules and he was Chief Justice....

Therefore Marshall denied that the delegation was impermissible. Since then, of course, Congress has authorized the Supreme Court to prescribe almost all rules of procedure for the lower federal courts. In 1940, that power was even written into law.

Thus began the delegation of duty thereafter known as "Filling up the Details" of statutes. That unconstitutional power quickly grew to become popular among government bureaucrats. Because, once the Court had the convenience of making its own rules, the administrative branch wanted it, too.

It took the Roosevelt administration to carry the concept of "Filling up the Details" ad nauseam. Because, by that time Roosevelt had totally intimidated the Court and had his own majority approving anything he wanted. So, no matter how unconstitutional a law was, the Supreme Court often let it continue without comment. The delegation of vast legislative powers to administrative agencies became de facto. No relation to any of those specific powers delegated to the federal government by the Constitution were necessary. The concept of "necessary and proper" was dead. Worse, since 1940, the unconstitutional delegation of lawmaking power to administrative agencies by Congress has been recognized as necessary. Otherwise, the federal government would never be able to continue regulating those many areas undefined by the Constitution.

By 1989, the U.S. Supreme Court had completely capitulated, hence quietly declaring null and void the original intent of the Founding Fathers and relegating our Constitution to little more than an interesting historical document. The offending words were written by Justice Blackmun in the majority decision of Mistretta v. United States, in which the Court ruled: "our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."(1)

So we find today that many thousands of unelected federal bureaucrats, working in over one hundred federal agencies and at least a dozen federal departments, collectively have authority to regulate almost everything in the lives of the American people.

As anyone bothering to read the Federalist Papers knows, today's federal government is but a sick parody of that which was intended by the Founding Fathers.





Mr. Fiedor publishes a newsletter Heads Up --- A Weekly View from the Foothills of Appalachia that is free to all at His e-mail is [email protected]

Originally published in the Medical Sentinel 2002;7(3):94-95, 104. Copyright©2002 Association of American Physicians and Surgeons (AAPS)