No less than our liberty is at stake.

• Author: Emord, Jonathan W.
• Position: National Affairs

[ILLUSTRATION OMITTED]

THE OBAMA Administration is mounting a legal defense of the President's health reform law that is an argument for no limits on Federal power. It is a striking revelation, telling us that the President, a lawyer, has no qualms with seeking to establish precedent that eviscerates the enumerated powers doctrine at the heart of Article I of the Constitution. The Administration argues that Congress may adopt any economic regulation it thinks necessary under either the Commerce Clause, Article I, Section 8, Clause 3, or the Necessary and Proper Clause, Article I, Section 8, Clause 18. The Administration contends that the Necessary and Proper Clause forms a basis for Federal legislation independent of Article I, permitting legislation on any subject Congress thinks necessary for the public good. The ultimate conclusion that flows from this argument is that no subject and no person or entity is beyond the reach of Federal power.

The Administration feels that, if Congress perceives a legislative means to achieve a public interest objective, there is nothing in the Constitution that can stand in its way. Acceptance of this position removes the last remaining barriers to the assumption of all power by the Federal government. It overthrows the government of limited, enumerated powers created by the Constitution and establishes in its place one centralized government answerable only to itself for the exercise of power.

The Administration thus is challenging the fundamental legal principles that define our republic. Pres. Barack Obama rejects the counsel given the nation's future rulers by Pres. George Washington. In his memorable 1796 Farewell Address, Washington warned against precisely the usurpation of power Obama achieved in his health reform law: "If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."

In drafting Article I, the Founding Fathers chose not to define the legislative power as consisting of all power except that which was expressly reserved to the states. To the contrary, the Founders chose the inverse proposition, defining the legislative power as consisting of specific enumerated grants and reserving all other powers to the states. They relied on that enumeration and reservation of state power to form a dual check against centralization, one arising in constitutional challenges against extensions of Federal power beyond the Article I enumerations and the other arising from such challenges contesting moves by the Federal government to encroach on the states' reserved powers.

In Federalist No. 45, James Madison explains the relationship between the Federal and state governments intended in the Constitution: The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

The Necessary and Proper Clause appears at the end of Article I and has been understood since the founding of the Republic not to be an independent grant of power such that the enumerations in Article I, Section 8 would be rendered meaningless. Instead, it has been viewed as an adjunctive clause, meaning that the Federal government may make laws "necessary and proper for carrying into execution the foregoing powers." Thus, if a legislative action is based on an enumerated power, Congress may enact attendant laws necessary and proper to support use or effectuation of the enumerated power. The general power defined in the enumerations of Article I consequently limits the scope of what is granted but, within that scope, Congress may choose all means necessary and proper to effectuate constitutional ends.

Madison put it this way in Federalist No. 44: "No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included." Never has the Constitution been interpreted by the Federal courts to mean that independent of the powers enumerated in...