Concept

Enumerated and Reserved Powers

Constitutional Power to Exercise Criminal Jurisdiction

Enumerated and Reserved Powers

The Introduction framed the legislative question as whether a government has power to make conduct a crime, and the answer starts with a default rule that points in opposite directions for the two governments. Congress holds only what the Constitution gives it, so a federal criminal statute with no grant behind it has nothing to stand on.¹ A state legislature holds a general power of governing that the Constitution did not create, so a state statute needs no grant and is vulnerable only to a constitutional prohibition or a conflicting valid federal law.² Every later section on federal criminal power and its limits assumes this asymmetry. The discussion here builds it in four steps: the delegation itself, the role of the Tenth Amendment, the question whether delegated powers must be written in express words, and the structural reasons the Framers built two sovereigns. Together these produce a working rule for any criminal statute.

Delegated Federal Power

Article I opens by vesting in Congress "[a]ll legislative Powers herein granted."³ The qualifier herein granted ties Congress's authority to the list in Article I, § 8 and to the other grants found elsewhere in the document, so Congress holds what the text hands it and nothing more.⁴ In National Federation of Independent Business v. Sebelius the Court described the arrangement this way: the National Government possesses only limited powers, the States and the people retain the remainder, and the Constitution lists powers such as the powers to "coin Money," "establish Post Offices," and "raise and support Armies" rather than granting general authority to perform every function of government.⁵

Because a list of powers implies that whatever is missing from it was not granted, the enumeration limits Congress even as it empowers Congress.⁶ That has a consequence for the order of analysis in any challenge to a federal criminal statute. The Bill of Rights and similar prohibitions come into play only where the government has authority to act in the first place, so a law with no enumerated power behind it may not be enacted even if it violates no express prohibition.⁷ A defendant who cannot point to a First or Fifth Amendment violation may therefore still defeat a federal charge by showing that Congress had no power to reach the conduct. The court answers that power question before it reaches any individual-rights question.

The reason for the list is visible in how the Framers chose it. They refused to give the national government a general police power over the health, safety, and morals of the community, and they rejected an early proposal to let Congress legislate in all cases for the general interests of the Union, choosing instead a "laundry list" of specific purposes in Article I, § 8.⁸ The choice matters most in criminal law, because a criminal statute is a command backed by a sanction applied directly to individuals. A general federal power to forbid whatever Congress judged harmful to the national interest would reduce the states' criminal law to whatever Congress chose not to displace. Dividing power instead protects individual liberty by denying any one government complete jurisdiction over all the concerns of public life.⁹

Because the source of power has to be found in the constitutional text, the seriousness of a problem cannot supply it. In A. L. A. Schechter Poultry Corp. v. United States the government defended a regime of codes of fair competition, whose violations were punishable as crimes, by pointing to the grave national economic crisis.¹⁰ The Court answered that extraordinary conditions do not create or enlarge constitutional power, and that the Tenth Amendment anticipated and precluded claims of extra-constitutional authority.¹¹ A prosecutor's argument that conduct is widespread, harmful, or urgent is therefore beside the point at the threshold, where the only question is whether some grant of power reaches it.

The Tenth Amendment's Role

With delegation established, the next question is what the Tenth Amendment adds. It declares that "[t]he 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."¹² The Amendment answered a specific worry: opponents of ratification feared that a national government with power over every subject of legislation would swallow the states, and eight states voted to ratify only after recommending amendments, each including some version of what became the Tenth.¹³ It puts into words what the enumeration already implied, which is why Printz v. United States describes residual state sovereignty as implicit in the grant of only discrete, enumerated powers and made express by the Tenth Amendment.¹⁴

Read for what it says, the Amendment points at powers that were not delegated. It describes the territory outside the grants and does not draw a second boundary inside them. A dissent in Printz drew the contrast with the First Amendment: the First prohibits a category of laws that Article I would otherwise authorize, while the Tenth imposes no restriction on powers that are delegated.¹⁵ The reason is that delegated and reserved are two sides of one line. Whether Congress has a power and whether that power is reserved to the states are inquiries the Court has called mirror images of each other, so a yes to the first is a no to the second.¹⁶

Two decisions show the Amendment on each side of that line. In United States v. Darby the Court upheld a federal wage-and-hour statute that carried criminal penalties and rejected a Tenth Amendment objection, explaining that the Amendment only restates that undelegated powers are reserved and does not strip Congress of means appropriate and plainly adapted to a granted power.¹⁷ The commerce power reached the regulated production, so nothing remained for the Amendment to protect. In United States v. Butler the power question came out the other way. The Agricultural Adjustment Act was a plan to regulate agricultural production, a matter beyond the powers delegated to the federal government, so it invaded the rights reserved to the states, and the Court reasoned that powers not granted to a government of delegated powers are prohibited to it.¹⁸ What separates the two is whether a delegated power reached the subject. Where one did, the Amendment had nothing left to protect, and where none did, the Amendment simply named the consequence of the missing grant.

The Court once treated the Amendment as a free-standing shield. National League of Cities v. Usery held that the Commerce Clause did not authorize Congress to displace the States' freedom to structure integral operations in areas of traditional governmental functions.¹⁹ Garcia v. San Antonio Metropolitan Transit Authority later overruled that decision, reasoning that the question is whether the Constitution has reserved an activity to the States and that the political process, rather than a judicial test of traditional functions, is the appropriate vehicle for protecting state interests.²⁰ None of this touches the rule against commandeering. Printz invalidated provisions that directly compelled state officers to administer a federal regulatory program, and that rule rests on the Constitution's structure read together with the Tenth Amendment, so it is a distinct limit that a later section takes up.²¹

Implied Powers

A government of enumerated powers could be read to require that every power be written out in express words. McCulloch v. Maryland rejected that reading: although no enumerated power mentions banks or incorporation, the Constitution does not, like the Articles of Confederation, exclude incidental or implied powers.²³ The text supports the point. The Articles reserved to the states powers not "expressly" delegated, while the Tenth Amendment speaks only of powers "not delegated," which leaves the question whether a power has been delegated to turn on a fair construction of the whole instrument.²⁴

The reason is practical. A constitution that spelled out every means of carrying its powers into execution would read like a legal code and could scarcely be grasped by the people it governs, so the document marks the great outlines and leaves the minor ingredients to be deduced from the objects of the powers.²⁵ A government entrusted with ample powers must also have ample means to execute them.²⁶ Criminal law is the clearest illustration, since no clause of Article I says in terms that Congress may punish anyone. In McCulloch Marshall observed that all admit the government may punish violations of its laws even though punishment is not among the enumerated powers, and he traced the right to punish those who rob the mail through the power to carry the mail, which in turn rests on the power to establish post offices.²⁷ The enumerated power fixes the end, and the means to it, including a penal sanction, may be implied.

Implied power has an edge. McCulloch itself warned that if Congress, under pretext of executing its powers, passed laws to accomplish objects not entrusted to the government, the Court would have to declare such an act not the law of the land.²⁸ Butler drew the corollary from earlier cases: a provision ostensibly enacted under a granted power, but not naturally and reasonably adapted to its exercise and aimed solely at something plainly within the power reserved to the States, is invalid.²⁹ The bank and the mail-robbery statute sit on the valid side because each measure serves an enumerated end such as taxing, borrowing, commerce, or carrying the mail. The pretext cases sit on the invalid side because the end actually pursued is itself outside the enumeration. How courts test whether a means is sufficiently connected to an end is the work of the Necessary and Proper Clause, which a later section develops.

Two Sovereigns and the Working Rule

Printz explains why the two default rules follow from the constitutional design. The Framers chose a Constitution under which Congress regulates individuals rather than States, so each government has its own direct relationship with the people it governs, and the Constitution contemplates that a state government will represent and remain accountable to its own citizens.³¹ Two separate reasons then support leaving the general criminal law with the states. The first is accountability. Madison described the federal powers as few and defined and the state powers as numerous and indefinite, extending to all the objects that concern the lives, liberties, and properties of the people and the internal order of the State.³² Ordinary crimes such as burglary, assault, and theft fall squarely in that second group. When a state defines and punishes such an offense, its own voters can reward or remove the legislators who wrote the law, and a federal power to reach the same conduct without any grant would take that decision away from officials answerable to those voters.

The second reason is protection against abuse. Hamilton argued that when one government invades the people's rights, they can use the other as the instrument of redress, and that safeguard works only if each government has a sphere the other cannot occupy at will.³³ The state side of the arrangement is stated directly in National Federation of Independent Business v. Sebelius: the Constitution is not the source of state power, so state governments need no constitutional authorization to act, and the States punish street crime and perform other vital functions under the police power, the general power of governing that the States hold and the Federal Government does not.³⁴ The two governments therefore face different default rules: where the Constitution is silent about a power, the Federal Government lacks it and the States enjoy it.³⁵ State power is not unlimited, because the Constitution may restrict state governments, as it does by forbidding them to deny any person the equal protection of the laws.³⁶

Hypothetical Illustration

A state legislature makes burglary of a private home a felony. The statute needs no enumerated source, because the police power covers it, and the only open questions are whether some prohibition, such as a vagueness or equal protection objection, or a conflicting valid federal law defeats it. Congress then enacts a word-for-word identical burglary statute for private homes anywhere in the country, with no jurisdictional element and no link to any listed power. The federal statute fails at the first step, because nothing in Article I delegates power to punish that conduct, and no Bill of Rights objection is needed to reach that result. Limit the federal statute to burglary of a post office and it at least has a candidate source in the power to establish post offices, which later sections develop.

Exam Analysis Steps

Because the default rule runs in opposite directions for the two governments, the first move on any criminal statute is to ask who enacted it. The steps are these:

Identify which government enacted the statute, because the burden of tracing the statute to a source of power falls on the federal side only.
If a state enacted it, treat the police power as the source and ask only whether a constitutional prohibition or a valid federal law defeats the statute.
If Congress enacted it, locate a specific delegated power that supports the statute, remembering that Congress's own label for its source does not bind a court and that one adequate power is enough.³⁷
Check that the statute is a means serving that power, since implied means are allowed and pretext is not.
Once a delegated power is found, move on to the separate limits on federal criminal power, because the Tenth Amendment adds no further objection to a validly delegated power.

The step most easily mishandled is the third, because Congress's own label for its power does not control. A court asks whether any delegated power supports the statute, so a federal criminal law that recites the wrong clause can still stand under a power Congress never mentioned, and one that recites a real clause can still fall if the clause does not reach the conduct.³⁸