NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the role of the legislature. Today’s episode features Professor Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. Professor Whittington is widely regarded as one of the preeminent scholars on the American Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: What powers does the Constitution actually confer on Congress? Why are they referred to as the “enumerated powers”? Why are taxing and spending legislative powers? KEITH WHITTINGTON: So section eight of Article one is the part of the constitution where the framers actually delegate a specific set of powers to Congress and so in the vesting clause at the beginning of article one, it specifies that the legislative powers herein granted are given to Congress and it's in section eight that they lay out what exactly those legislative powers are. They are being granted to Congress. We now categorize this as the set of enumerated powers. So we think of Congress as not having an open ended capacity to do whatever it wants, they might think is in the public's interest. That is a power that state legislatures have. We think of this as the general police powers a term borrowed from the British context in which we think legislatures who have general police powers have the power to make any kind of policy decision that they think might be in the best interest of the citizenry. Congress is not given that kind of general police powers. Instead, Congress has given a very specific set of powers and if it's not on the list, the assumption is that they don't have that power to exercise. The complication of course comes in thinking about what's implied by that set of enumerated powers. So famously Chief Justice John Marshall and McCulloch v Maryland emphasizes the idea that not only do we have a specific list of enumerated powers, but also there are implications of those enumerated powers and Congress can also do the things that are implied by having these enumerated powers and so a lot of the debate ultimately comes from thinking about, well what counts as the implications and what's part of the implications but even more so in saying that there are going to be implications in your enumerate power emphasizes the Congress doesn't have free reign. That there is a numeration, there is a limit, there are things that are not given to Congress and so our touchstone has to be the powers that are specifically listed in section eight and then those things that can be reasonably inferred from that specific list. So the very first item on the list of powers that's given to Congress in section eight of Article one is the power to tax and the power to spend. So something that we might not think of as a legislative power per se because it's not a law making power as such but it is a traditional power of legislators within the English system and importantly, and that's a power that's entrusted in Congress in ways that was not entrusted to the Congress under the Articles of Confederation. Part of what the framers in Philadelphia wanted to do was make sure that Congress could raise its own money. It didn't have to ask the States for permission for money to spend and so Congress is given a specific authority to impose taxes built in to that first provision of section eight. There's only specific kinds of taxes that Congress is entrusted to raise and section eight also includes a limitation about the nature of the taxes that can raise. So Congress is empowered to impose duties, for example, on goods that are being imported into the United States but the constitution is specific that those duties have to be uniform across the country because the framers are concerned the Congress not discriminate between different ports of entry into the United States. So part of a general principle in the constitution that all the States, all the parts of the United States should be treated equally in the same and Congress shouldn't be playing favorites and discriminating against some rather than others and the framers make an effort to make that textural explicit and thinking about the taxation power. So one point of ongoing debate about thinking about the taxing and spending power that Congress has is how closely that is connected to the rest of the enumerated powers that Congress has exercised. So across its history, Congress has tended to spend money in ways they're not necessarily connected to the enumeration of powers. Congress has understood they have a general power to spend in the general welfare of the United States. They don't have to tie the expenditures to a specific other power that they're being given more generally. That too is sometimes been controversial in American history. There have been occasions in which people have argued that the congressional spending power ought to be understood to be more limited than that. Congress can spend money on for certain kinds of purposes, but not for other kinds of purposes. So for example, there were controversies in early American history about whether or not Congress could spend money for general disaster relief, whether or not Congress could spend money to build roads. Should we view that as part of a general spending power that Congress thinks it's in the interest of the country, you can spend money on it or does Congress need a special authority to spend money on specific kinds of objects? The other place that there's been debate over time about how restricted Congress is and using the powers in the taxation context. Again, Congress has a general power to raise taxes. That power is in order to fund the government more generally, but the wrinkle is whether or not Congress uses that taxation authority for regulatory purposes. So one of the traditional ways in which Congress tries to regulate behavior or legislatures in general try to regulate behavior is by imposing costs on certain kinds of behavior in order to disincentivize people from using those costs. The framers were familiar with the idea that taxes are a vehicle for regulating behavior as well. So that raises the possibility that the taxing power is not only something that's designed to generate revenue for the government, but it's also designed to regulate behavior of private individuals in society more generally. If we think of it primarily as raising revenue, then we can think of as much more open ended. It's like the spending power. It's designed for the general welfare of the United States. If we think of it as primarily a mechanism for regulating behavior, then we might not want it to be so open ended. We might think instead it's attached to the other specific powers Congress has. So, it's a specific tool that Congress can use in order to regulate in the ways that the constitution otherwise specify as the Congress can regulate and they may choose to use the taxing authority to do that or they may choose to use some other regulatory tool to do that. But if Congress is primarily imposing a tax for the purposes of regulation, then it can't be open ended. They can't just tax anything they want. It has to be tied to a specific enumerated power and Congress has sometimes bumped into that barrier. So, for example, in the child labor cases in the early 20th century, the concern of the court was to say that Congress had designed something that it called attacks, but clearly it was instead primarily designed as a way of regulating labor conditions inside of States and so the court had already told Congress they couldn't directly regulate child labor as part of its power under the interstate commerce clause. Congress tried to run around of using the taxation power for that purposes and the court emphasized you can't use the taxation power to do the kind of regulatory activity you can't do directly in other contexts as well. So that's a general principle that Congress sometimes bumps into and the court sometimes tried to enforce. PUBLIUS: What other powers are specifically given to the Legislative branch? Why is it important that Congress be able to regular commerce? KEITH WHITTINGTON: So within section eight of Article one is a specific power to regulate commerce and it's the clause provides, Congress has power to regulate commerce with foreign nations and among the several States and with the Indian tribes. This has been thought of as three separate kinds of commerce powers and the one that's been most controversial over time has been the power to regulate among the several States, which is usually thought of as being the interstate commerce clause. This is the provision that Congress has leveraged over time to increase its regulatory activity over the national economy in general. It was a core provision under debate during the progressive era and during the new deal as to how expansive this power to regulate commerce might actually be. The court often interpreted it to be relatively narrow. They allowed Congress to regulate goods that were being shipped from state to state but couldn't regulate the productive activities inside of States and part of the transition out of the new deal was that the court accepted the idea that Congress could regulate not only the shipment of goods across state lines, but also regulate the production of goods inside of States and so allowing Congress then to regulate a whole range of activities including manufacturing and mining and agriculture. The 19th century it had been thought of as off the table but in the 20th century it had become crucial to what Congress does more generally. So the interstate commerce clause has been one of the most controversial provisions, but also as it's been interpreted in one of the most open-ended important provisions of the enumerated powers that Congress has. Other enumerated powers have been important, although somewhat more specific and often seen as less open-ended than the interstate commerce clause in particular and the framers are concerned and part of making sure the Congress is specifically empowered to engage in activities that they thought needed to be done at the national level and should not necessarily be done at the state level. So, for example, Congress has given a specific power to make national rules regarding bankruptcy. The framers are concerned that this is a power to settle relationships between debtors and creditors that had been very controversial. The States at the state level, after the American revolution, they're concerned that this is something that's better resolved at the national level where all the creditors and all the debtors can be represented rather than the state level where often the creditors and debtors are in fact in different states and so state legislatures weren't necessarily thinking about all the interest involved in those conditions. So the framers specifically wanted to enumerate that as being a power of Congress in order to bring it out of the states and place it into the national government as something to do. Likewise, compared to the article's Confederation, the framers wanted to give Congress a specific power to raise an army. So one of the enumerate powers in section eight is an authority not just to ask the states to provide troops the way Congress had to do under the Article of Confederation, but to raise troops on its own and raise its own military so that the federal government can have its own national fighting force. A lot of the other kinds of provisions that we think of in Article one section eight are much more targeted and over time have been subject to a great deal of less controversy. So the ability to create post offices and run a postal system is included in section eight. The ability to grant patents and copyrights as part of what's listed in section eight as being a specific power of Congress. Congress does notably in section eight to have a power to make uniform rules of naturalization. So it is an effort to say that the national government should have a capacity to sign who becomes a citizen of the United States. This has some immediate consequences and thinking about citizenship and part of what the framers are most immediately concerned with is who's going to become a citizen and who has the ability to make the rules about who becomes a citizen but it also has implications for thinking about immigration policy more generally. One thing the constitution does not specifically say is the Congress has a power to regulate immigration into the United States and so we tend to draw on the power to regulate immigration out of other provisions as being implications of other provisions in section eight including the provision to make uniform rules on naturalization but also to regulate international commerce and the bringing of people into the United States as seen as part of that general process of international commerce in general. Immigration is notable as being an example of a power that is not specifically granted in the text of the US constitution but is rather inferred from the structure of the constitution and from other specific provisions. Famously, of course in McCulloch v Maryland, Chief Justice John Marshall thinks that power to create corporations is also a natural implication of federal power and rises naturally as an inference from other powers that Congress can exercise. Others thought that creating corporations was in fact so important that it ought to be a specific grant of power or if it was really invested in Congress. Article 8 should have specifically had enumerated that power for example. So there are some various important things that Congress winds up doing that we think of as being part of national legislative power that fall between the enumerated powers in various ways. Otherwise, the framers were also assuming that things that are not specifically granted to Congress and that enumeration or don't naturally follow by inference from that specific enumeration or left to the States to resolve. So the constitution tends not to create specific carve outs and say these things are prohibited to Congress. They exist only in the States. Instead the constitution proceeds on the general assumption that if it wasn't mentioned and wasn't specifically given to Congress, then by default it falls to the states. One thing that the Bill of Rights does is actually come in and add some additional carve outs. So when it specifies in the first amendment that Congress shall make no law respecting the establishment of religion, for example, it is an effort to be clear this is something that cannot be inferred from the enumerated powers the Congress otherwise has, that this as a power that only States can exercise, but the Congress itself cannot exercise. So from our perspective, in terms of what we think of as being very important things the federal government does, including very important things that Congress does, some of those things like regulating immigration are actually not on their list of enumerated powers that the framers are thinking of, but are part of what we think of as being inferences from other parts of the constitution as well as part aspects of the general constitutional design who we think within the overall American political system ought to be exercising those powers. PUBLIUS: How does the “necessary and proper” clause work with enumerated powers? Does Congress act unconstitutionally when it delegates authority to administrative agencies? KEITH WHITTINGTON: So John Marshall lays out the basic structure of how we tend to think about enumerated powers and McCulloch v. Maryland and he says that the constitution is one that enumerates powers. Congress only has enumerated legislative powers and then also things that can be nationally inferred from those enumerated powers. Here, he leverages and and interprets the necessary and proper clause, which is also part of section eight of Article one where the constitution specifies the Congress has the authority to make laws that are necessary and proper to fulfilling the other functions of the constitution. It's an open ended provision, can be something Congress can leverage to do a lot of work, part of the controversy surrounding McCulloch v. Maryland was how broadly John Marshall was reading that clause, which was much more broadly the Jeffersonian's would have preferred. Jeffersonian's prefer to think about the necessary and proper clause as implying that Congress can only pass laws that are truly necessary in order to advance a given enumerated power. Marshall tends to read the necessary proper clause as more allowing Congress to make laws that are expedient and useful for advancing an enumerated power and there's a substantial gap between things that we think of are essential to be able to fulfill enumerated power and things that we simply think are well suited to advancing enumerated power. Marshall does think that thinking about things as being well-suited is a real constraint so that things that Congress says are advancing enumerate power have to have a demonstrable connection to actual enumerate power. Congress can't just pass anything and then claim it's trying to advance some other enumerated power. Marshall insists that if the enumerate powers are going to be meaningful necessary proper clause can't mean anything at all. It has to mean things with a real relationship, but he does think that real relationship allows lots of discretion for how Congress can exercise that power and that has been expanded over time and it becomes the vehicle by which Congress has done a lot of work, especially in the post new deal period to expand federal power generally. So one challenge for exercising the legislative power is that the legislative power is one of making general rules to govern society more generally of making legislation that's going to guide regulatory activity across an unknown set of cases in the future leading to the executive and judiciary the ability to then implement those general rules in a specific context. Part of the challenge for Congress is having enough information to make those rules specific enough that they actually are going to be meaningful and useful and and another challenge facing Congress is how to adjust those rules in a meaningful way over time. As Congress became more active, the society and the economy became more complex in the late 19th and early 20th century. Congress increasingly found as state legislatures were finding that it was useful to delegate some rule making authority to other agencies to be able to fill in the details of what the rules ought to be in order to make the adjustments over time to those rules as you might have to adjust to changing events in order to take advantage of information that specialized agencies and experts might have about specific situations. This load gives rise to a general concern that has Congress given away too much power in that process or are you effectively delegating the law making power to, for example, executive branch agencies by giving them the authority to make adjustments over time. Congress has struggled with this issue. The courts have struggled with this issue of trying to figure out what's the boundary line between making use of administrative agencies to fill in the details of laws as opposed to simply passing off the lawmaking power to an administrative agency itself. The court has long recognized, at least in principle, there's a outer boundary here that Congress can't simply give away its legislative power and simply pass off legislative decision making to another branch of government or another set of institutions but trying to figure out whether a specific law has actually gone too far. It has proven extraordinarily difficult for the court to figure out. In practice, the court has been willing to be very deferential to Congress and how it chooses to exercise this authority and Congress across the 20th century became increasingly aggressive about passing broadly worded statutes that passed on a lot of details that need to be fleshed out by administrative agencies. So empowering an agency to make a lot of specific rules in a specific context and so a lot of the rulemaking that actually provides the concrete regulations that are going govern society are not being directly voted on by Congress, but instead are being decided by administrative agencies under statutory authority that they've been given by Congress in pretty broad terms. So the process of delegating power to administrative agencies has changed quite a bit over time and part as Congress has passed different kinds of statutes and depending on what exactly the needs were of Congress over time. So some instances of passing important statutory authority, discretionary authority off to the executive branch, we think of as fairly targeted and sometimes are connected specifically to some fact finding activity. So for example, Congress all through the 20th century has authorized presidents to make adjustments to tariff rates under specific conditions and that has generally been characterized as Congress setting a specific tariff rate that it wants to impose on imported goods, but then further authorizing the president to adjust those tariff rates within some boundary if certain kinds of facts arise. So Congress thinks that's necessary in order to deal with changing circumstances more rapidly than Congress itself can deal with circumstances. And sometimes it gives the president some leverage to be able to engage in negotiation with foreign States in ways to set trade policy across international boundaries and Congress wanted to give the President the tool to be able to do that, but that's a relatively limited delegation has a very specific purpose that operates within specific bounds. It's hooked on specific, although sometimes fairly vague, sets of facts as this a national security interest, et cetera. In other context, Congress is granted broad discretionary authority to executive agencies to pursue a policy goal that Congress wants. So, a lot of environmental regulations, but also a lot of other regulatory innovations of the latter part of the 20th century take this kind of form where Congress knows the goal is trying to pursue, but it's not very clear on how exactly to get there and so it authorizes an administrative agency to develop the facts, to develop an expertise in order to figure out whether the specific rules and regulations that need to be adopted in order to advance us toward this particular goal. So we know we want safer drinking water, but Congress may not know exactly what is needed in order to make safer drinking water and more they might worry that the need of how to do that changes over time and so you might want to change the tools as to how to get safer drinking water. So they simply delegate authority to the environmental protection agency to make a lot of those concrete decisions about how to advance that generalized goal that Congress has set. The court requires the Congress at least have an intelligible goal. So it's necessary for the administrative agencies and also the courts to know what it is Congress is trying to accomplish when they've set out that authority but otherwise the courts have tolerated Congress giving a lot of discretion to executive agencies in how exactly they pursue that goal, what exactly the tools are certainly, what all the specific discretionary decisions are that have real policy consequences that administrative agencies might need to make in order to try to advance us toward that goal. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the role of the legislature. Today’s episode features Professor Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. Professor Whittington is widely regarded as one of the preeminent scholars on the American Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What powers does the Constitution actually confer on Congress? Why are they referred to as the “enumerated powers”? Why are taxing and spending legislative powers? So section eight of Article one is the part of the constitution where the framers actually delegate a specific set of powers to Congress and so in the vesting clause at the beginning of article one, it specifies that the legislative powers herein granted are given to Congress and it's in section eight that they lay out what exactly those legislative powers are. They are being granted to Congress. We now categorize this as the set of enumerated powers. So we think of Congress as not having an open ended capacity to do whatever it wants, they might think is in the public's interest. That is a power that state legislatures have. We think of this as the general police powers a term borrowed from the British context in which we think legislatures who have general police powers have the power to make any kind of policy decision that they think might be in the best interest of the citizenry. Congress is not given that kind of general police powers. Instead, Congress has given a very specific set of powers and if it's not on the list, the assumption is that they don't have that power to exercise. The complication of course comes in thinking about what's implied by that set of enumerated powers. So famously Chief Justice John Marshall and McCulloch v Maryland emphasizes the idea that not only do we have a specific list of enumerated powers, but also there are implications of those enumerated powers and Congress can also do the things that are implied by having these enumerated powers and so a lot of the debate ultimately comes from thinking about, well what counts as the implications and what's part of the implications but even more so in saying that there are going to be implications in your enumerate power emphasizes the Congress doesn't have free reign. That there is a numeration, there is a limit, there are things that are not given to Congress and so our touchstone has to be the powers that are specifically listed in section eight and then those things that can be reasonably inferred from that specific list. So the very first item on the list of powers that's given to Congress in section eight of Article one is the power to tax and the power to spend. So something that we might not think of as a legislative power per se because it's not a law making power as such but it is a traditional power of legislators within the English system and importantly, and that's a power that's entrusted in Congress in ways that was not entrusted to the Congress under the Articles of Confederation. Part of what the framers in Philadelphia wanted to do was make sure that Congress could raise its own money. It didn't have to ask the States for permission for money to spend and so Congress is given a specific authority to impose taxes built in to that first provision of section eight. There's only specific kinds of taxes that Congress is entrusted to raise and section eight also includes a limitation about the nature of the taxes that can raise. So Congress is empowered to impose duties, for example, on goods that are being imported into the United States but the constitution is specific that those duties have to be uniform across the country because the framers are concerned the Congress not discriminate between different ports of entry into the United States. So part of a general principle in the constitution that all the States, all the parts of the United States should be treated equally in the same and Congress shouldn't be playing favorites and discriminating against some rather than others and the framers make an effort to make that textural explicit and thinking about the taxation power. So one point of ongoing debate about thinking about the taxing and spending power that Congress has is how closely that is connected to the rest of the enumerated powers that Congress has exercised. So across its history, Congress has tended to spend money in ways they're not necessarily connected to the enumeration of powers. Congress has understood they have a general power to spend in the general welfare of the United States. They don't have to tie the expenditures to a specific other power that they're being given more generally. That too is sometimes been controversial in American history. There have been occasions in which people have argued that the congressional spending power ought to be understood to be more limited than that. Congress can spend money on for certain kinds of purposes, but not for other kinds of purposes. So for example, there were controversies in early American history about whether or not Congress could spend money for general disaster relief, whether or not Congress could spend money to build roads. Should we view that as part of a general spending power that Congress thinks it's in the interest of the country, you can spend money on it or does Congress need a special authority to spend money on specific kinds of objects? The other place that there's been debate over time about how restricted Congress is and using the powers in the taxation context. Again, Congress has a general power to raise taxes. That power is in order to fund the government more generally, but the wrinkle is whether or not Congress uses that taxation authority for regulatory purposes. So one of the traditional ways in which Congress tries to regulate behavior or legislatures in general try to regulate behavior is by imposing costs on certain kinds of behavior in order to disincentivize people from using those costs. The framers were familiar with the idea that taxes are a vehicle for regulating behavior as well. So that raises the possibility that the taxing power is not only something that's designed to generate revenue for the government, but it's also designed to regulate behavior of private individuals in society more generally. If we think of it primarily as raising revenue, then we can think of as much more open ended. It's like the spending power. It's designed for the general welfare of the United States. If we think of it as primarily a mechanism for regulating behavior, then we might not want it to be so open ended. We might think instead it's attached to the other specific powers Congress has. So, it's a specific tool that Congress can use in order to regulate in the ways that the constitution otherwise specify as the Congress can regulate and they may choose to use the taxing authority to do that or they may choose to use some other regulatory tool to do that. But if Congress is primarily imposing a tax for the purposes of regulation, then it can't be open ended. They can't just tax anything they want. It has to be tied to a specific enumerated power and Congress has sometimes bumped into that barrier. So, for example, in the child labor cases in the early 20th century, the concern of the court was to say that Congress had designed something that it called attacks, but clearly it was instead primarily designed as a way of regulating labor conditions inside of States and so the court had already told Congress they couldn't directly regulate child labor as part of its power under the interstate commerce clause. Congress tried to run around of using the taxation power for that purposes and the court emphasized you can't use the taxation power to do the kind of regulatory activity you can't do directly in other contexts as well. So that's a general principle that Congress sometimes bumps into and the court sometimes tried to enforce. What other powers are specifically given to the Legislative branch? Why is it important that Congress be able to regular commerce? So within section eight of Article one is a specific power to regulate commerce and it's the clause provides, Congress has power to regulate commerce with foreign nations and among the several States and with the Indian tribes. This has been thought of as three separate kinds of commerce powers and the one that's been most controversial over time has been the power to regulate among the several States, which is usually thought of as being the interstate commerce clause. This is the provision that Congress has leveraged over time to increase its regulatory activity over the national economy in general. It was a core provision under debate during the progressive era and during the new deal as to how expansive this power to regulate commerce might actually be. The court often interpreted it to be relatively narrow. They allowed Congress to regulate goods that were being shipped from state to state but couldn't regulate the productive activities inside of States and part of the transition out of the new deal was that the court accepted the idea that Congress could regulate not only the shipment of goods across state lines, but also regulate the production of goods inside of States and so allowing Congress then to regulate a whole range of activities including manufacturing and mining and agriculture. The 19th century it had been thought of as off the table but in the 20th century it had become crucial to what Congress does more generally. So the interstate commerce clause has been one of the most controversial provisions, but also as it's been interpreted in one of the most open-ended important provisions of the enumerated powers that Congress has. Other enumerated powers have been important, although somewhat more specific and often seen as less open-ended than the interstate commerce clause in particular and the framers are concerned and part of making sure the Congress is specifically empowered to engage in activities that they thought needed to be done at the national level and should not necessarily be done at the state level. So, for example, Congress has given a specific power to make national rules regarding bankruptcy. The framers are concerned that this is a power to settle relationships between debtors and creditors that had been very controversial. The States at the state level, after the American revolution, they're concerned that this is something that's better resolved at the national level where all the creditors and all the debtors can be represented rather than the state level where often the creditors and debtors are in fact in different states and so state legislatures weren't necessarily thinking about all the interest involved in those conditions. So the framers specifically wanted to enumerate that as being a power of Congress in order to bring it out of the states and place it into the national government as something to do. Likewise, compared to the article's Confederation, the framers wanted to give Congress a specific power to raise an army. So one of the enumerate powers in section eight is an authority not just to ask the states to provide troops the way Congress had to do under the Article of Confederation, but to raise troops on its own and raise its own military so that the federal government can have its own national fighting force. A lot of the other kinds of provisions that we think of in Article one section eight are much more targeted and over time have been subject to a great deal of less controversy. So the ability to create post offices and run a postal system is included in section eight. The ability to grant patents and copyrights as part of what's listed in section eight as being a specific power of Congress. Congress does notably in section eight to have a power to make uniform rules of naturalization. So it is an effort to say that the national government should have a capacity to sign who becomes a citizen of the United States. This has some immediate consequences and thinking about citizenship and part of what the framers are most immediately concerned with is who's going to become a citizen and who has the ability to make the rules about who becomes a citizen but it also has implications for thinking about immigration policy more generally. One thing the constitution does not specifically say is the Congress has a power to regulate immigration into the United States and so we tend to draw on the power to regulate immigration out of other provisions as being implications of other provisions in section eight including the provision to make uniform rules on naturalization but also to regulate international commerce and the bringing of people into the United States as seen as part of that general process of international commerce in general. Immigration is notable as being an example of a power that is not specifically granted in the text of the US constitution but is rather inferred from the structure of the constitution and from other specific provisions. Famously, of course in McCulloch v Maryland, Chief Justice John Marshall thinks that power to create corporations is also a natural implication of federal power and rises naturally as an inference from other powers that Congress can exercise. Others thought that creating corporations was in fact so important that it ought to be a specific grant of power or if it was really invested in Congress. Article 8 should have specifically had enumerated that power for example. So there are some various important things that Congress winds up doing that we think of as being part of national legislative power that fall between the enumerated powers in various ways. Otherwise, the framers were also assuming that things that are not specifically granted to Congress and that enumeration or don't naturally follow by inference from that specific enumeration or left to the States to resolve. So the constitution tends not to create specific carve outs and say these things are prohibited to Congress. They exist only in the States. Instead the constitution proceeds on the general assumption that if it wasn't mentioned and wasn't specifically given to Congress, then by default it falls to the states. One thing that the Bill of Rights does is actually come in and add some additional carve outs. So when it specifies in the first amendment that Congress shall make no law respecting the establishment of religion, for example, it is an effort to be clear this is something that cannot be inferred from the enumerated powers the Congress otherwise has, that this as a power that only States can exercise, but the Congress itself cannot exercise. So from our perspective, in terms of what we think of as being very important things the federal government does, including very important things that Congress does, some of those things like regulating immigration are actually not on their list of enumerated powers that the framers are thinking of, but are part of what we think of as being inferences from other parts of the constitution as well as part aspects of the general constitutional design who we think within the overall American political system ought to be exercising those powers. How does the “necessary and proper” clause work with enumerated powers? Does Congress act unconstitutionally when it delegates authority to administrative agencies? So John Marshall lays out the basic structure of how we tend to think about enumerated powers and McCulloch v Maryland and he says that the constitution is one that enumerates powers. Congress only has enumerated legislative powers and then also things that can be nationally inferred from those enumerated powers. Here, he leverages and and interprets the necessary and proper clause, which is also part of section eight of Article one where the constitution specifies the Congress has the authority to make laws that are necessary and proper to fulfilling the other functions of the constitution. It's an open ended provision, can be something Congress can leverage to do a lot of work, part of the controversy surrounding McCulloch v Maryland was how broadly John Marshall was reading that clause, which was much more broadly the Jeffersonian's would have preferred. Jeffersonian's prefer to think about the necessary and proper clause as implying that Congress can only pass laws that are truly necessary in order to advance a given enumerated power. Marshall tends to read the necessary proper clause as more allowing Congress to make laws that are expedient and useful for advancing an enumerated power and there's a substantial gap between things that we think of are essential to be able to fulfill enumerated power and things that we simply think are well suited to advancing enumerated power. Marshall does think that thinking about things as being well-suited is a real constraint so that things that Congress says are advancing enumerate power have to have a demonstrable connection to actual enumerate power. Congress can't just pass anything and then claim it's trying to advance some other enumerated power. Marshall insists that if the enumerate powers are going to be meaningful necessary proper clause can't mean anything at all. It has to mean things with a real relationship, but he does think that real relationship allows lots of discretion for how Congress can exercise that power and that has been expanded over time and it becomes the vehicle by which Congress has done a lot of work, especially in the post new deal period to expand federal power generally. So one challenge for exercising the legislative power is that the legislative power is one of making general rules to govern society more generally of making legislation that's going to guide regulatory activity across an unknown set of cases in the future leading to the executive and judiciary the ability to then implement those general rules in a specific context. Part of the challenge for Congress is having enough information to make those rules specific enough that they actually are going to be meaningful and useful and and another challenge facing Congress is how to adjust those rules in a meaningful way over time. As Congress became more active, the society and the economy became more complex in the late 19th and early 20th century. Congress increasingly found as state legislatures were finding that it was useful to delegate some rule making authority to other agencies to be able to fill in the details of what the rules ought to be in order to make the adjustments over time to those rules as you might have to adjust to changing events in order to take advantage of information that specialized agencies and experts might have about specific situations. This load gives rise to a general concern that has Congress given away too much power in that process or are you effectively delegating the law making power to, for example, executive branch agencies by giving them the authority to make adjustments over time. Congress has struggled with this issue. The courts have struggled with this issue of trying to figure out what's the boundary line between making use of administrative agencies to fill in the details of laws as opposed to simply passing off the lawmaking power to an administrative agency itself. The court has long recognized, at least in principle, there's a outer boundary here that Congress can't simply give away its legislative power and simply pass off legislative decision making to another branch of government or another set of institutions but trying to figure out whether a specific law has actually gone too far. It has proven extraordinarily difficult for the court to figure out. In practice, the court has been willing to be very deferential to Congress and how it chooses to exercise this authority and Congress across the 20th century became increasingly aggressive about passing broadly worded statutes that passed on a lot of details that need to be fleshed out by administrative agencies. So empowering an agency to make a lot of specific rules in a specific context and so a lot of the rulemaking that actually provides the concrete regulations that are going govern society are not being directly voted on by Congress, but instead are being decided by administrative agencies under statutory authority that they've been given by Congress in pretty broad terms. So the process of delegating power to administrative agencies has changed quite a bit over time and part as Congress has passed different kinds of statutes and depending on what exactly the needs were of Congress over time. So some instances of passing important statutory authority, discretionary authority off to the executive branch, we think of as fairly targeted and sometimes are connected specifically to some fact finding activity. So for example, Congress all through the 20th century has authorized presidents to make adjustments to tariff rates under specific conditions and that has generally been characterized as Congress setting a specific tariff rate that it wants to impose on imported goods, but then further authorizing the president to adjust those tariff rates within some boundary if certain kinds of facts arise. So Congress thinks that's necessary in order to deal with changing circumstances more rapidly than Congress itself can deal with circumstances. And sometimes it gives the president some leverage to be able to engage in negotiation with foreign States in ways to set trade policy across international boundaries and Congress wanted to give the President the tool to be able to do that, but that's a relatively limited delegation has a very specific purpose that operates within specific bounds. It's hooked on specific, although sometimes fairly vague, sets of facts as this a national security interest, et cetera. In other context, Congress is granted broad discretionary authority to executive agencies to pursue a policy goal that Congress wants. So, a lot of environmental regulations, but also a lot of other regulatory innovations of the latter part of the 20th century take this kind of form where Congress knows the goal is trying to pursue, but it's not very clear on how exactly to get there and so it authorizes an administrative agency to develop the facts, to develop an expertise in order to figure out whether the specific rules and regulations that need to be adopted in order to advance us toward this particular goal. So we know we want safer drinking water, but Congress may not know exactly what is needed in order to make safer drinking water and more they might worry that the need of how to do that changes over time and so you might want to change the tools as to how to get safer drinking water. So they simply delegate authority to the environmental protection agency to make a lot of those concrete decisions about how to advance that generalized goal that Congress has set. The court requires the Congress at least have an intelligible goal. So it's necessary for the administrative agencies and also the courts to know what it is Congress is trying to accomplish when they've set out that authority but otherwise the courts have tolerated Congress giving a lot of discretion to executive agencies in how exactly they pursue that goal, what exactly the tools are certainly, what all the specific discretionary decisions are that have real policy consequences that administrative agencies might need to make in order to try to advance us toward that goal. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. 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