Two important doctrines of constitutional law—that the Federal Government is one of enumerated powers and that legislative powers may not be delegated—are derived in part from this section. The classic statement of the former is by Chief Justice Marshall in McCulloch v. Maryland: “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.”34 That, however, “the executive power” is not confined to those items expressly enumerated in Article II was asserted early in the history of the Constitution by both Madison and Hamilton and is found in decisions of the Court;35 a similar latitudinarian conception of “the judicial power of the United States” was voiced in Justice Brewer’s opinion for the Court in Kansas v. Colorado.36 But, even when confined to “the legislative powers herein granted,” the doctrine is severely strained by Chief Justice Marshall’s broad conception of some of these powers, as he described them in McCulloch v. Maryland. He asserts that “[t]he sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government”;37 he characterizes “the power of making war, or levying taxes, or of regulating commerce” as “great substantive and independent power[s]”;38 and he declares that the power conferred by the “necessary and proper” clause embraces all legislative “means which are appropriate” to carry out the legitimate ends of the Constitution, unless inconsistent “with the letter and spirit of the constitution.”39

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of “resulting powers,” which are those that “rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated.”40 Story’s reference is to Marshall’s opinion in American Ins. Co. v. Canter,41 that “the constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.”42 And from the power to acquire territory, Marshall continues, arises, as “the inevitable consequence,” the right to govern it.43

Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the “rights expressly given, and duties expressly enjoined” by the Constitution;44 the power to impart to the paper currency of the government the quality of legal tender in the payment of debts;45 the power to acquire territory by discovery;46 the power to legislate for the Indian tribes wherever situated in the United States;47 the power to exclude and deport aliens;48 and to require that those who are admitted be registered and fingerprinted;49 and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. Thus, in United States v. Curtiss-Wright Export Corp.,50 decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated.

Yet, for the most part, these holdings do not, as Justice Sutherland suggested, directly affect “the internal affairs” of the nation; they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those that have taken place under cover of the doctrine—the vast expansion in recent years of national legislative power in the regulation of commerce among the states and in the expenditure of the national revenues. Marshall laid the ground for these developments in some of the language quoted above from McCulloch v. Maryland.


17 U.S. (4 Wheat.) 316, 405 (1819). back
See discussion under Article II, § 1, cl. 1, Executive Power: Theory of the Presidential Office, infra. back
206 U.S. 46, 82 (1907). back
17 U.S. (4 Wheat.) at 407. back
17 U.S. at 411. back
17 U.S. at 421. back
2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1256 (1833). See also id. at 1286 and 1330. back
26 U.S. (1 Pet.) 511 (1828). back
26 U.S. at 542. back
26 U.S. at 543. back
Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616, 618–19 (1842). back
Juilliard v. Greenman, 110 U.S. 421, 449–450 (1884). See also Justice Bradley’s concurring opinion in Knox v. Lee, 79 U.S. (12 Wall.) 457, 565 (1871). back
United States v. Jones, 109 U.S. 513 (1883). back
United States v. Kagama, 118 U.S. 375 (1886). back
Fong Yue Ting v. United States, 149 U.S. 698 (1893). back
Hines v. Davidowitz, 312 U.S. 52 (1941). back
299 U.S. 304 (1936). back