Article I, Section 8: The powers of Congress

Section 8 is the list. It names what Congress may regulate, and by leaving things off, it tells you what Congress may not. Almost every big fight over federal power, from the national bank in 1819 to health insurance in 2012, is a fight over how to read these 18 clauses.

The text

[Clause 1] 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;

[Clause 2] To borrow Money on the credit of the United States;

[Clause 3] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

[Clause 4] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

[Clause 5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

[Clause 6] To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

[Clause 7] To establish Post Offices and post Roads;

[Clause 8] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

[Clause 9] To constitute Tribunals inferior to the supreme Court;

[Clause 10] To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

[Clause 11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

[Clause 12] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

[Clause 13] To provide and maintain a Navy;

[Clause 14] To make Rules for the Government and Regulation of the land and naval Forces;

[Clause 15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

[Clause 16] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

[Clause 17] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

[Clause 18] 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.

Source: National Archives transcription Verified1

Clause 1: Taxing and spending

What it says. Congress can tax to "pay the Debts and provide for the common Defence and general Welfare." Duties, imposts and excises must be uniform across the country.

How courts read it

• The tax power can sustain what the commerce power can't. In 2012 the Court held that the Affordable Care Act's individual mandate was not a valid regulation of commerce because it "does not regulate existing commercial activity," but a majority upheld the payment for going without insurance as a tax (National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)) Verified2.
• Spending with strings. Congress can attach conditions to money it gives states. In South Dakota v. Dole (1987), withholding 5% of highway funds from states with a drinking age under 21 was "relatively mild encouragement," and the condition stood (South Dakota v. Dole, 483 U.S. 203 (1987)) Verified3. In NFIB, threatening all of a state's existing Medicaid money to force the Medicaid expansion was "much more than 'relatively mild encouragement'—it is a gun to the head," and the Court held that part coercive Verified2.
• The power to tax limits other governments too. In McCulloch v. Maryland (1819) Maryland taxed the national bank. Marshall wrote that "the power to tax involves the power to destroy," and held a state can't tax a federal institution (McCulloch v. Maryland, 17 U.S. 316 (1819)) Verified4.

In Williams. Federal grants to the city or county come with conditions under this clause. A condition is valid if it's clear, related to the purpose of the money and not coercive (Dole) Verified3. When a city accepts the money, it accepts the strings.

Clause 2: Borrowing

Congress may "borrow Money on the credit of the United States." The national debt rests on this clause; the Fourteenth Amendment later added that "The validity of the public debt of the United States ... shall not be questioned" (§4) Verified5.

Clause 3: The Commerce Clause

What it says. Congress can "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

How courts read it, in four eras

1. Broad from the start. In 1824 New York gave one steamboat company a monopoly on its waters. Chief Justice Marshall held that "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse," including navigation, so the federal license controlled (Gibbons v. Ogden, 22 U.S. 1 (1824)) Verified6.
2. Aggregation. In 1942 a farmer grew wheat above his federal quota to feed his own animals. The Court held that his own effect on the wheat market "may be trivial by itself" but is still reachable "where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial" (Wickard v. Filburn, 317 U.S. 111 (1942)) Verified7.
3. A limit. In 1995 the Court struck down a federal law banning guns near schools. Upholding it "would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States" (United States v. Lopez, 514 U.S. 549 (1995)) Verified8.
4. Back to aggregation, for a California case. California's Compassionate Use Act allowed medical marijuana. Two Californians grew their own for personal use, under state law. The Court held that Congress can still ban it, because "failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole" in the federal Controlled Substances Act (Gonzales v. Raich, 545 U.S. 1 (2005)) Verified9.

The "dormant" Commerce Clause. Courts also read the clause as a silent limit on states: a state or city law that discriminates against out-of-state business is suspect even if Congress hasn't acted. Michigan and New York let in-state wineries ship to consumers but barred out-of-state ones; "This differential treatment explicitly discriminates against interstate commerce," and the laws fell (Granholm v. Heald, 544 U.S. 460 (2005)) Verified10.

In Williams

• Cannabis. Raich is why federal marijuana law still applies inside Williams, whatever California law or a city ordinance allows Verified9. Cities in California decide whether to allow cannabis businesses under state law; federal prohibition stays in place regardless.
• Local preferences. A city rule that favors local businesses over out-of-state ones, for example in licensing, can raise a dormant Commerce Clause problem. Our reading: check any "local only" rule against Granholm's warning about discrimination Verified10.

Clause 4: Naturalization and bankruptcy

Congress sets one national rule for becoming a citizen and uniform bankruptcy laws. This is why immigration status is a federal question. The Court held in Arizona v. United States (2012) that several parts of a state immigration law were preempted by federal law (Arizona v. United States, 567 U.S. 387 (2012)) Verified11. A city can't create its own immigration crimes. Bankruptcy is also federal law. If you are in bankruptcy and the city is trying to collect money from you, ask your bankruptcy lawyer how federal bankruptcy law treats that debt; this course doesn't cover it.

Clauses 5 and 6: Money and counterfeiting

Congress coins money, sets its value and fixes weights and measures (clause 5), and punishes counterfeiting (clause 6). Article I, Section 10 forbids states from coining money or making anything but gold and silver legal tender.

Clause 7: Post offices and post roads

The basis of the Postal Service. It's also why mail is federal: tampering with mail is a federal crime, and a city can't regulate the mail carrier.

Clause 8: Copyrights and patents

Congress can give authors and inventors exclusive rights "for limited Times." The purpose is in the text: "To promote the Progress of Science and useful Arts."

Clause 9: Lower federal courts

Congress creates "Tribunals inferior to the supreme Court." Every federal district court and court of appeals exists because Congress chose to create it. See Article III.

Clause 10: Piracy and the law of nations

Congress defines and punishes crimes at sea and offenses against international law.

Clauses 11–14: War and the military

• Clause 11: Congress declares war and grants letters of marque (licenses for private ships to attack enemies, long obsolete).
• Clause 12: Congress raises armies, but no army appropriation can last more than two years, a check against a permanent force beyond the people's control.
• Clause 13: Congress provides a navy, with no two-year limit.
• Clause 14: Congress makes rules for the armed forces.

The split between Congress's power to declare war and the President's power as Commander in Chief (Article II) has never been fully settled by the courts.

Clauses 15 and 16: The militia

Congress can call out the militia "to execute the Laws of the Union, suppress Insurrections and repel Invasions," and provide for organizing, arming and disciplining it. The states appoint officers and train the militia under Congress's rules. Today's National Guard rests on these clauses together with the Army clause. See also the Second Amendment.

Clause 17: The federal district and federal enclaves

Congress has exclusive power over the seat of government (now the District of Columbia) and over places bought from states for forts, arsenals and similar buildings. DC residents got presidential electors through the Twenty-third Amendment.

Clause 18: The Necessary and Proper Clause

What it says. Congress can make "all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" and all other federal powers.

How courts read it. The national bank case set the rule. Maryland argued "necessary" meant indispensable. Marshall rejected that. The Constitution doesn't mention a bank, but Congress can choose reasonable means to carry out its listed powers, because "we must never forget that it is a constitution we are expounding" Verified4. The test: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional" (McCulloch v. Maryland, 17 U.S. 316 (1819)) Verified4.

The clause has limits. In NFIB, the Court held the individual mandate couldn't be sustained under the Commerce Clause and the Necessary and Proper Clause together, because it compelled people to enter commerce rather than regulating what they were already doing Verified2.

How it reaches Williams

Section 8 grants power to Congress; it doesn't limit cities directly, except through the dormant Commerce Clause. But when Congress validly uses one of these powers, the resulting federal law is "the supreme Law of the Land" under Article VI and overrides any conflicting state or city law Verified1. That's preemption. See Supremacy and preemption.

In Williams

• Two levels of law at once. A Williams resident lives under federal law made through Section 8 and state law made under California's general police power. Both can apply to the same act, as Raich shows Verified9.
• Federal money. If the city takes federal grants, the grant conditions are enforceable because of the Spending Clause, within the Dole limits Verified3.
• Local favoritism. A city rule that discriminates against out-of-state sellers is suspect under Granholm's reasoning Verified10.

Common misconceptions

• "Interstate commerce means goods crossing a state line." Since Wickard, it also covers local activity that, added up nationally, substantially affects interstate markets Verified7.
• "If California legalizes something, federal law can't touch it here." Raich says otherwise for marijuana Verified9.
• "Necessary means absolutely necessary." McCulloch rejected that reading Verified4.
• "The general Welfare Clause is a general power to legislate." It's a power to tax and spend for the general welfare, not to regulate anything Congress thinks is good.

Check yourself

Pick an answer for each question. You will see right away if it is right, and why.