January 24, 2010
Enumerated Powers Act: Some Congressional Responses
By James Wilson

Rep. John Shadegg's Enumerated Powers Act  requires Congress to specify the source of authority under the United States Constitution for the enactment of laws. This should not be controversial, because members are sworn to support the Constitution.

Nevertheless, there is hostility to the idea that Congress should conform to this bill's requirements. We are printing the substantive parts of Rep. Eshoo's and Sen. Burris's replies to DC Downsizers on the Enumerated Powers Act, and we believe they represent the views of a majority in Congress. Our criticism of these responses will appear in a forthcoming Downsizer-Dispatch.

From Rep. Anna G. Eshoo:


. . .As you know, H.R. 450 would require Congress to adhere to the perspective that unless something is specifically enumerated in the U.S. Constitution, it is prohibited. Based on my understanding of the Constitution and my reading of the Federalist Papers, as well as other historical documents that inform my judgment and the opinions of most legal scholars in this matter, I disagree.

America's Constitution has often been described as a "living, breathing document," specifically designed by our forefathers to allow flexibility to manage our nation within the rule of law.  The original U.S. Constitution never anticipated industrial factories, let alone airplanes and the Internet.  Instead, the Constitution provides generally for the defense and welfare of the people and permits Congress to draft laws that follow through on this intent.  The Presidential veto is the first "check" on this legislative power, and the Judiciary as the third branch of government, has the final "check" to declare an Act of Congress unconstitutional.  This process of "checks and balances" is the core of our system.  I'm satisfied with this approach because while it is imperfect, it has worked well for over 200 years.

Congress also has its own internal checks and balances that weed out unconstitutional laws long before they see the light of day.  We provide for one of the most transparent legislative processes in the world.  Legislation is posted publicly for review. It undergoes rigorous analysis by the Office of Legislative Counsel, and it is subject to open hearings, committee amendments and Floor debate.  Both the Senate and the House must pass legislation, so this process is repeated at least twice.

I assure you that I would never sponsor, cosponsor or support a bill that I considered unconstitutional in nature.  I also would not support legislation that weakened one branch of government in favor of another, thereby undermining the very premise of the "checks and balances" concept which was crafted so carefully by our forefathers . . .

From Sen. Roland W. Burris:

. . .Article 1, Section 8 of the United States Constitution outlines the authority granted to Congress. Over the years, the enumerated powers have come under scrutiny due to different methods of interpretation. Strict constitutionalists view the enumerated powers as the sole legislative responsibilities vested in Congress, while more liberal interpretations allow for the expansion and contraction of these powers.

I believe the genius of our Constitution rests in its timeless applicability. There is no better example of this than the Necessary and Proper Clause, also known as the Elastic Clause. Instead of the powers of Congress being confined to outdated principles and issues, the Necessary and Proper clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers. As your Senator, I can assure you that Congressional power is only used to make decisions that are intended to benefit the American people. S. 1319 has currently been referred to the Senate Rules Committee. I will keep your views in mind if this bill comes to the Senate floor for a vote . . .



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