A Question Perpetually Arising: Implied Powers, Capable Federalism, and the Limits of Enumerationism

The American constitutional order embodies a tension between two irreconcilable ideas. Enumerationism holds that federal powers are limited to those expressly enumerated in the Constitution, plus whatever implied powers are necessary and proper to execute them. What I call capable federalism asserts that the Constitution creates a national government fully empowered to address all national problems. Enumerationism rejects the idea that the federal government has general powers, or that it has implied powers of equal or greater dimension than those expressly listed. Capable federalism is a general power by definition, and it is fully compatible with formal recognition of implied “great” powers. Although the two theories are incompatible, our constitutional doctrine tries to harmonize them by claiming to adhere to enumerationism while evading its strictures. We find various constitutional tricks and cheats to accommodate the structural imperative that any federalist system must ensure that all societal problems can be addressed by at least one level of government. Still, an ideological overlay of enumerationism continues to suppress any formal recognition of capable federalism.