<< Learning Nothing from Willie Horton | Main | Scarface v. US >>

Enumerated Powers

In the federal structure of the United States, the residual legislative authority lies with the states.  The Congress has only the legislative powers enumerated in Article I, Section 8 and a few other places in the Constitution and its amendments (e.g., section 5 of the Fourteenth).

For much too long, too many Members of Congress have taken the attitude that they can and should enact any legislation they think is good policy and leave it to the courts to decide if they actually had the authority to pass it.  Since 1937, the idea that Congress can regulate anything that affects interstate commerce, as long as the regulation is not prohibited by some other provision, has been taken to lengths that raise the question of whether we still have a government of enumerated powers.

There have been a handful of cases, mostly criminal and related cases, where the Supreme Court has drawn the line.  United States v. Lopez, 514 U.S. 549 (1995) held that prohibiting otherwise legal possession of firearms in a school zone exceeded the Commerce Clause authority.  United States v. Morrison, 529 U.S. 598 (2000) struck down a civil remedy for rape by persons who were not state actors.  Jones v. United States, 529 U.S. 848 (2000) gave the federal arson statute a narrowing reading than its words seem to warrant to avoid the constitutional limit.  Despite these modest limits, though, federal regulation and criminalization remains pervasive.

In a refreshing move, the House of Representatives in the 112th Congress "will require that every new bill contain a statement by the lawmaker who wrote it citing the constitutional authority to enact the proposed legislation," Philip Rucker and Krissah Thompson report in the WaPo.  The requirement is symbolic, of course.  Those who conceive of federal authority as limitless will just recite that the activity in question affects interstate commerce.  Everything does, at some level.  Yet even purely symbolic gestures can have an effect on the group mindset.  It is a good thing to remind congressmen daily that theirs is a legislature of enumerated powers.  I, for one, am glad to see this rule.

Federal criminal law is for inherently federal matters such as international terrorism, smuggling, or counterfeiting, crime in federal enclaves (forts, ships, D.C.), or for crimes of a scope that spans multiple states such as large crime syndicates or the Bernie Madoff scheme.  Arson, rape, murder, kidnapping, or bank robbery (FDIC or not) should be state-law matters absent unusual circumstances.


I agree with you that the feds have overcriminalized things, and there are too many federal crimes and that the feds punish crimes which really should be handled by the states. However, given that federal power has overreached in many areas of public life, I don't think that law and order should be the first to be retrenched.

Nor do I, but those other controversies are off-topic for the blog.

Leave a comment

Monthly Archives