DownsizeDC.org
January 25, 2010
Enumerated Powers Act: Answering Critics
By James Wilson

The Enumerated Powers Act (EPA) requires that every bill must specify its source of Constitutional authority. Since our previous report in December, four more Representatives have signed on as sponsors of the EPA.

You can find the 60 House sponsors here.

And the 22 Senate sponsors here.

The problem is, many in Congress don't want to be bothered with this simple requirement. They think that anything Congress passes must be Constitutional. Let's persuade them to change their minds, with our arguments and our pressure.

You can use this letter as an example . . .

I think I know why so many in Congress want to ignore the Enumerated Powers Act (EPA). The attitude was expressed by Sen. Burris and Rep. Anna Eshoo in replies to constituents published at DownsizeDC.org. http://www.downsizedc.org/blog/enumerated-powers-act-some-congressional-responses

Sen. Roland W. Burris says, "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 Instead of the powers of Congress being confined to outdated principles and issues, the Necessary and Proper clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers."

Burris's position is scary. "Tangentially" means "Merely touching or slightly connected; Only superficially relevant; divergent." http://www.thefreedictionary.com/tangentially

How can the "superficially relevant" be necessary and proper?

Indeed, the Necessary and Proper Clause does not give Congress the sweeping authority Burris imagines. It instead authorizes Congress "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing (i.e., "enumerated") Powers." The Enumerated Powers Act doesn't overrule the Necessary and Proper Clause, it only demands that the appropriate "enumerated power" be cited in the bill.

Burris goes on: "As your Senator, I can assure you that Congressional power is only used to make decisions that are intended to benefit the American people."

Sen. Burris believes that the Necessary and Proper Clause means Congress can do whatever it wants because its intentions are good.

If the federal government was to be unlimited in its powers as Burris suggests, then why didn't the Framers give Congress absolute, unlimited powers to begin with?

Rep. Eshoo's response isn't much better. "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 . . . I disagree."

But H.R. 450 doesn't adhere to a "perspective." It just requires a citation of the Constitutional clause that authorizes the new law.

In this sense, passing the Enumerated Powers Act is actually in Congress's best interest. If Congress won't explicitly state the source of the Constitutional authority for a law they pass, why should Congress expect the Supreme Court to uphold it?

She goes on: "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."

I'm sorry, but this "living, breathing" business is code for "the Constitution gives us as much power as we want to have." This is not "within the rule of law," this undermines the rule of law. The Constitution is only supposed to change by amendment, not by Congressional dictate.
 
Rep. Eshoo asserts: "The original U.S. Constitution never anticipated industrial factories, let alone airplanes and the Internet."

Actually, as written it did make room for such things. It gave Congress jurisdiction over *interstate* commercial air traffic. It gave Congress jurisdiction over the *interstate* shipment of goods.

And she says, "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 . . ."

But by what other standard does she consider bills constitutional or unconstitutional, aside from the text itself? She doesn't say.

The responses of Burris and Eshoo scare me. They believe they can do whatever they want with my life, liberty, and property, and they'll call it Constitutional.

If you don't sponsor and vote for the Enumerated Powers Act, then, frankly, you scare me too.

END LETTER

You can send your letter using DownsizeDC.org's Educate the Powerful System.

We would also like to thank the following DC Downsizers who last week contributed to further our work . . .

1-time donations: George Autry, Thomas Skeese, Dave Schrock, Robert Taylor, Jordan Voellinger, Charles Parrott III -- there were also 8 donors who requested to be unlisted

New monthly pledges: none

You can make a contribution or start a monthly pledge here.

Jim Babka
President
DownsizeDC.org, Inc.

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