You may have encountered a rhetorical question against a Federal law or expenditure, “Where is that [law or spending] authorized in Article I, § 8 of the Constitution?” Alternatively, just a statement that Congress has gone beyond Article I, § 8. That section lists 18 powers granted to Congress, and the implication is that our Federal government is supposed to be limited to what is authorized, or enumerated. The suggestion is correct, and what our founders intended, which is why that question should be taken seriously.
For a simple reason, that question should not be taken literally: other parts of the Constitution also grant power to Congress. Which parts grant what other powers?
Consent Powers
- Emoluments Clause (Art. I, § 9, ¶ 8): No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
- Import Export Clause (Art. I, § 10, ¶ 2): 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.
- Compact Clause (Art. I, § 10, ¶ 3): No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
- Advice and Consent Clause (Art. II, § 2 ¶ 2): He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
- New States Clause (Art IV, § 2, ¶ 1): New States may be admitted by the Congress into this Union.
- Vice Presidential Succession (25th Amendment): Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Lawmaking Powers
- Elections Clause (Art I, § 4, ¶ 1): 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.
- Vacancy/Disability Clause (Art. II, § 1, ¶ 6): …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…
- Original and Appellate Jurisdiction Clause (Art. III, § 2, ¶ 2): …In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
- Federal Trials Clause (Art. III, § 2, ¶ 3): 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.
- Treason Clause (Art. III, § 3, ¶ 2): The Congress shall have Power to declare the Punishment of Treason…
- Full Faith and Credit Clause (Art IV, § 1): 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.
- Property/Territory Clause (Art IV, § 2, ¶ 2): 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.
- Prohibition on Slavery (13th Amendment): Congress shall have power to enforce this article by appropriate legislation.
- Equal Protection, Due Process, and more… (14th Amendment): The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
- The Right to Vote Regardless of Race (15th Amendment): The Congress shall have power to enforce this article by appropriate legislation.
- The Right to Vote Regardless of Sex (19th amendment): Congress shall have power to enforce this article by appropriate legislation.
- Presidential Succession pre-Inauguration (20th Amendment): …Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected…
- Presidential Succession pre-Inauguration Pt. 2 (20th Amendment): The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
- Electors for District of Columbia (23rd Amendment): The Congress shall have power to enforce this article by appropriate legislation.
- No Poll Tax (24th Amendment): The Congress shall have power to enforce this article by appropriate legislation.
- Right to Vote At Age 18 (26th Amendment): The Congress shall have the power to enforce this article by appropriate legislation.
Taxing Power
- Income Tax (16th Amendment): The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
Impeachment and Adjudication Powers
- Impeachment Clause (Art I, § 2, ¶ 5): The House of Representatives…shall have the sole Power of Impeachment.
- Impeachment Trial Clause (Art I, § 3, ¶ 6): The Senate shall have the sole Power to try all Impeachments…
Electoral Powers
- Election Day Clause (Art. II, § 1, ¶ 4): 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.
- Resolving Electoral Ties (12th Amendment): …The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three< on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice…The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President…
Lawmaking and Adjudication Power
- Presidential Incapacitation (25th Amendment): Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Creating New Courts
- Inferior Courts Clause (Art. III, § 1): 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.
Given the limited powers for the Federal government, and all those powers outside of Article I, § 8, such a question and statement should be taken seriously, but not literally.
