The Powers of Congress

In 1790 the United States Congress created the United States Army. Article I Section 8 of the U.S. Constitution lists the following among the many powers of Congress:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

Article I Section 8, U.S. Constitution

So clearly the Congress has the power to create both an army and a navy of the United States. Prior to that time the United States was defended by state militias, which the federal government is empowered to muster:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel invasions;

Article I Section 8, U.S. Constitution

But the Constitution does NOT say that the Congress has the power to create an air force (or a space force). Does that mean that the Congress exceeded its power in passing the National Security Act of 1947 by which the Army Air Force was removed from the Army and was made a separate branch of the military?

No, it does not. Here is another portion of Article I Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article I Section 8, U.S. Constitution

Congress has always had the power to provide for the national defense. In an era when wars are fought often or primarily through aerial bombardment, the national defense must certainly require the creation and equipage of an air force.

But why does the Constitution specifically state that Congress has the power to create both an army and a navy? For one thing, the powers granted to Congress to appropriate funds for the army cannot extend beyond two years:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Article I Section 8, U.S. Constitution

There is no similar limitation on the funding of the navy. Apparently the Founders felt that it was necessary to specifically call out this constraint for the army but not the navy. Why? Was the navy not imagined to be as important or as expensive as an army? If so that was a serious error in judgment. During World War II the navy was absolutely essential to victory in the Pacific theater. The lack of constraints on funding of the navy looks like a simple oversight.

Here’s another key passage concerning the powers of Congress:

To make Rules for the Government and Regulation of the land and naval Forces;

Article I Section 8, U.S. Constitution

So by these words Congress appears to be prohibited from making rules for the government and regulation of either air or space forces. If true that would mean that the Uniform Code of Military Justice (UCMJ), which Congress enacted in 1950, violated this power because it applied its regulations to the then separate air force in addition to the land and naval forces. And yet Article I Section 8 ends as follows:

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 or Officer thereof.

Article I Section 8, U.S. Constitution

So Congress does have the power to regulate the air force, and the space force, and a cyber security force, and indeed any other defensive force it might create in the future. Why then did the Founders specifically call out the need to create regulations for land and naval forces only?

The Founders did not imagine the need for an air force or a space force or a cyber security force. They could have accounted for the full range of defense needs for a nation whose future they couldn’t imagine by using general language, rather than by specifically enumerating the forces they assumed would be necessary. For example, the following wording would have allowed the Congress to create all of the forces that have thus far been created, funded, and regulated:

To provide for the common defense through the creation and funding of such forces as circumstances shall require; but no appropriation of money for that use shall be for a term longer than two years;

To make rules for the governing and regulation of all defense forces;

The Founders did not adopt such language. Why? Chiefly it was a failure of imagination. But it is also clear from the lack of constraint on funding for the navy that the Founders weren’t even consistent in their conception of the forces they recognized. The Founders simply didn’t anticipate the full range of future defense requirements, and the Constitution reflects their lack of foresight. The inclusion of specific wording for the regulation of land and naval forces is redundant to the closing wording of Article I Section 8 which grants Congress omnibus power to pass laws governing all aspects of the execution of its other powers. That just shows that the enumeration of the powers of Congress is confused and redundant– precisely the kind of listing one would expect from its imperfect human authors.

Does Congress have the power to create social services such as Social Security, Medicare, Medicaid, or the Affordable Care Act? Some people have read the enumerated powers of Congress to infer that Congress has no such power. Here is the Tenth Amendment:

The 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.

Amendment X, U.S. Constitution

Therefore, some have argued, any power not specifically identified in Article 1 Section 8 should be reserved to the states. Since there is no specific mention in that section of a power to create a social services agency, that power must devolve to the states. But are there other powers that are mentioned in Article I Section 8 which encompass the power to create social service agencies? Here again are the opening phrases of Article I Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article I Section 8, U.S. Constitution

So Congress has the power to provide for the general welfare. Certainly social and medical services would contribute to the general welfare of the nation. Despite this seemingly obvious conclusion a shareholder of the Edison Electric Illuminating Company sued the Commissioner of the IRS on the grounds that Congress exceeded its authority by passing the Social Security Act of 1935. In 1937 the Supreme Court found in its review of that suit that the provision in Article I Section 8 of the Constitution that Congress has the power to “provide for the … general Welfare” does indeed apply to such services as those enshrined in the Social Security Act. So those who claim that Congress has no such power are simply wrong.

Incidentally this interpretation of the phrase “provide for the … general Welfare” supports the notion that the phrase “provide for the common Defence” should be interpreted to allow for the creation of any defensive forces, regardless of their realms of operation. Therefore the Congress does indeed have the power to create an air force, a space force, a cyber security force, and any other forces not presently imagined which might be relevant to the national defense.

One could argue that virtually any law Congress might enact necessarily provides for the general welfare and that therefore the Tenth Amendment doesn’t accord to the states any special powers at all. After all why would Congress enact any legislation that is not intended to provide for the general welfare in some respect?

That is in fact the chief defect of the Tenth Amendment. The Amendment is designed to accord to the states any powers not specifically reserved to the federal government. But the key wording of Article I Section 8 is general, not specific: Congress has the power to “provide for the common Defence and general Welfare of the United States,” and that leaves essentially nothing to the states.

The Tenth Amendment should have enumerated a specific list of powers to be reserved to the states– but that is not the approach taken by the Founders. And for that reason the Tenth Amendment is irrelevant. It reserves no specific powers to the states because the powers assigned to the Congress of the United States are so general that they cover virtually anything at all that a government might wish implement. The Tenth Amendment, therefore, should be modified to list those specific powers that we wish to reserve for implementation by the separate states.

Copyright (c) 2021, David S. Moore

All rights reserved