At the time of the founding of The United States of America and its federal government, the initial tasks centered on wrapping up two very important aspects of the would-be nation: establishing the various branches and their distinct but equal powers, and enshrining the rights of individual citizens. I’m not listing these as the first and second tasks because that’s not how the founders thought of them.
We understand amendments to be alterations or additions to The U.S. Constitution. True-though-that-may-be, the compilation of The Bill of Rights was not necessarily an afterthought; it wasn’t a “correction”. On the contrary, The Bill of Rights was originally conceived during the process of ratifying The Constitution. The promise of a coming bill of rights allowed many framers and delegates to throw their support behind ratification of the constitution, because, in the words of Thomas Jefferson:
"A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."
Without the promise of a bill of rights, identifying specific individual liberties the government couldn’t revoke, the Constitution may not have had the required support among the states.
Having concluded our last portion with a review of The Bill of Rights, we won’t spend time going over them again. We’ve given significant attention to the rights of individual citizens. Examining both sides of the equation will aid us in getting a good idea of what each party is legally allowed to do, as well as what it is bound to avoid. So, here, we’ll take a more detailed look at the structure and powers of our federal government.
You’re likely familiar with the three branches of our federal government: legislative, executive, and judicial. The three branches are considered “separate, but equal”. That’s a bit misleading. While no branch technically has more power than another, each has the highest authority in its particular domain. In order for a law to become a law, it must originate in the legislature. It’s passage there gives The President the opportunity to sign or veto, but The President cannot simply create a law on his/her own. The President cannot overrule the Supreme Court in interpretation of the constitutionality of a given law. There’s specific responsibility and authority residing in each branch, but each of the three branches is a necessary part of the whole.
So, with regard to creating, enforcing, and interpreting laws, how far can these branches go? Let’s see!
Article I, Section 8, lists all of the authority that the federal government possesses. It’s a short list that we often refer to as “enumerated powers”. The critical element is that the way our constitution is designed (think about the 9th and 10th amendments and The Declaration of Independence: people have rights that don’t come from government, states have the right to control what the federal government doesn’t, and the federal government only has the authority to do the specific things that the people tell it that it can do) is that a power must be enumerated (listed or named) in order for the government to be allowed to take action. If it’s not listed, it’s out-of-bounds.
Essentially, the federal government is only empowered to do the following:
1. Collect taxes; pay debts and borrow money
2. Regulate interstate commerce
3. Establish rules for becoming a citizen and bankruptcy laws
4. Coin money and punish counterfeiting
5. Establish post offices and post roads
6. Protect patents and copyrights
7. Establish lower courts
8. Declare war
9. Raise and support a military
10. AND…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department of Office thereof. (Basically this means that the government can make laws about how they operate and how they do the other 9 things listed above)
Your eyes may have glossed-over while reading that short list. It sounds a little disinteresting. It reads like a list of the obvious things that governments do. So, that might leave you feeling like that’s all our government does. Some others of you, however, may have perked up a bit. Your mind may have gone, immediately, to a veritable laundry-list of departments, agencies, policies, and regulations that don’t seem to have a home anywhere on that brief inventory…and you’re right (we’ll get to that later).
Strictly speaking, the enumerated powers are assigned to Congress, but the function of carrying out some of the operational aspects rests with the executive branch. Keep in mind that these aren’t necessarily all of the things that each branch can and does do.
Finally, the purpose of the judicial branch (at the federal level) is to determine whether or not the other two branches are getting things right. Essentially, the entire function of the Supreme court is to: interpret laws, determine the constitutionality of laws, and apply the law to individual cases.
There are some omissions in the way enumerated powers seem to assign all authority to congress. Actually all three branches play some small role in each enumerated power (even when authority for a given area is ceded to another). For example, congress makes laws, but the executive branch enforces them. Congress funds the military, but The President is the commander-in-chief with full authority to direct the military and its personnel. Our system is uniquely designed to ensure that while overall responsibility and authority is granted to one branch, it can’t go too far down a trail of committing the nation in any certain way without agreement from another branch. That’s a good thing.
Now would be as good a time as any to point out that contemporary citizens (in the 21st century) like to use the term “do-nothing”…as in, “do-nothing congress”. This is lobbed about as a type of insult, indicating that the congress is, perhaps, “sitting on its hands” and refusing to take action to solve a problem.
While congress does have the authority to originate and pass bills, that authority only extends to what is needed to operate the federal government and carry out the other enumerated responsibilities. It has to be careful not to propose and advance legislation that would interfere with any individual or states’ rights. Its scope is defined, and pretty narrow.
In reality, our system was designed the way it was designed to intentionally make it difficult to get things done. The framers didn’t want the government acting hastily and passing laws that would either become onerous in number or reach into areas of American life where they had no business interfering. Put another way, they wanted to legislative branch to be slow and lumbering; the wanted a “do-nothing congress”.
In completely unrelated news, the United States has enacted more than 30,000 statues since 1789. That’s a staggering 200 – 600 new laws every year.
The most poignant message to the federal government (all branches) about where its powers stop and the rights of the people start comes in the 10th amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or the people.”
In our next section, we’ll look at where the rubber meets the road; we’ll review the various departments and agencies that exist (at the federal level).
Buckle up. We’re definitely going to be attacking some idols…and it probably doesn’t matter much where you stand, personally, on the political spectrum.
Here’s a preview…of the 15 federal departments reporting to The President, I’ll argue that at least seven of them exist and operate either without legitimate constitutional authority, or were structured on constitutionally shaky ground.