Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Are there no limits on the power of Congress?

July 15, 2011 by Lyle Denniston


In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution  and what duties it imposes or rights its protects. Today’s topic: The limits of federal legislative power.

The constitutional claim:

“There’s nothing in the Constitution that restricts the government from asking us to do something or buy something or pay a tax – even if we don’t like it.”

- Richard Stengel, “One Document, Under Siege,” TIME magazine, June 23, 2011

The constitutional response:

However much power the national government now has, and undoubtedly it has a great deal, the Constitution does not give Congress, the President, or the federal courts power to do anything they think would be good for the country.

The current debate over the constitutionality of the new federal health care law is, fundamentally, a public discussion about just what limits there are on federal authority to tell Americans how the government wants them to live their lives – especially, what limits there are on Congress’s authority to legislate when it perceives a problem.

All sides in the debate do agree that there are limits; the differences are over how to define them.  The Constitution itself supplies some answers.

It is sometimes difficult to remember, 224 years after the Constitutional Convention finished its work in Philadelphia, that the Framers in creating a national government were determined not to give it the unchecked authority that British kings had over their subjects.   The Revolution had thrown off that yoke, and no one – not even the most ardent nationalists, like Alexander Hamilton – wanted to re-impose it.

The state ratifying conventions that followed continued the debate over how to create a new government, and how to keep it in check.   Ultimate ratification, putting the Constitution into effect, did not endorse unlimited national authority to govern, even on matters that might seem to affect the whole nation.

It falls to the courts, mainly, to enforce the constitutional boundaries on national power, including the Tenth Amendment.  That provision declares specifically that “[t]he 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.”

Throughout history, it has been just as likely that some critic of federal power would exaggerate the breadth of the Tenth Amendment, as it is that some critic of states’ rights would exaggerate the breadth of the power given to the federal government.

Between those exaggerated perceptions, a more balanced public discourse has gone on about the legitimacy, the very constitutionality, of new national legislation.   When Congress passes a new federal law that stirs constitutional controversy, the lawmakers do not merely “ask” the people of America to “do something or buy something or pay a tax.”  If Congress addressed a problem that way, the people could just say “No,” and the legislative plea would simply fail.

Such legislation commands a response, and provides the means to back up the mandate.  Sometimes, it is the enticement of federal funds: Do this, or the government won’t provide the money for it.  Other times, it is simply the creation of a duty: Pay the tax, or the IRS will come calling (or, under the new health care law, buy the insurance or pay a federal penalty).

With such coercive power available, and routinely employed by Congress, it is no wonder that critics of new national laws will turn to the Constitution, looking for limits.  The one limit that has seemed to work the best, in modern times, is the concept of “federalism” – preserving the division of power between national and state governments.  That is both a concrete application of the Tenth Amendment, and illustrative of a more abstract concept about preserving “the constitutional design.”

So, the constitutional inquiry about federal power goes on. Whatever the answer, it will not be unchecked congressional authority.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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