Need Versus Want

You’ll remember that in the post Living On Credit we closed saying “There are many departments and agencies in the federal government that have no legal basis for existence. We advocate for their removal; send them to the states if the function is needed, dissolve them if it’s just window dressing. We will publish a list of unauthorized federal government agencies in our next post.” That is the subject of this article and the source of the title. Our government, as depicted in the Constitution, documents what the people need to live safe, secure, productive lives. What the government has evolved to is a list of wants, whether Constitutional or not.

We overreached, promising to publish a list of unauthorized agencies, as the size of the federal government makes that impossible in this article. If you combine all departments, independent agencies, commissions, boards, and other entities, the total number typically exceeds 430 individual entities. However, the exact number depends on how “agency” is defined and whether sub-agencies (e.g., branches of larger departments) are included in the count.

We will concentrate on the 15 Cabinet Level Departments to start.

Which departments are specifically part of the enumerated powers in the Constitution?

The US Constitution specifically enumerates certain powers to the federal government, primarily found in Article I, Section 8. Here are the federal departments, boards, commissions, or agencies that could be directly linked to these enumerated powers:

Congress:

Enumerated Power: Although not a Cabinet Level Department Congress has the constitutional power to make all laws which shall be necessary and proper for carrying into execution the enumerated powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Department of the Treasury:

Enumerated Power: To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; to borrow Money on the credit of the United States; to coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.

Department of Defense:

Enumerated Power: To provide for the common Defense; to raise and support Armies; to provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval Forces.

Post Office (now part of the US Postal Service):

Enumerated Power: To establish Post Offices and post Roads.

Patent and Trademark Office (part of the Department of Commerce):

Enumerated Power: 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.

Federal Judiciary (including the Supreme Court and lower federal courts):

Enumerated Power: To constitute Tribunals inferior to the supreme Court.

US Marshals Service (within the Department of Justice):

Enumerated Power: To define and punish Piracy and Felonies committed on the high Seas, and Offenses against the Law of Nations.

This enumerated power then had the Necessary and Proper Clause applied, authorizing federal law enforcement activities.

Naturalization Service (now part of US Citizenship and Immigration Services within the Department of Homeland Security):

Enumerated Power: To establish a uniform Rule of Naturalization.

Commerce Department (for aspects related to interstate and foreign commerce):

Enumerated Power: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

While these are direct links, many modern federal agencies and their functions have evolved significantly beyond these specific enumerated powers, often justified under the “necessary and proper” clause or through later constitutional interpretations and amendments. Agencies like the Environmental Protection Agency, the Department of Education, or the Department of Health and Human Services, for instance, do not directly stem from these enumerated powers but from broader interpretations of federal authority or subsequent legislation.

Keep in mind that the structure and responsibilities of government agencies have evolved over time, often through Congressional legislation which interprets the Constitution’s powers broadly. If an agency or department is not physically in the enumerated powers, as legislation and executive strategies change, these organizations may be removed or repurposed.

Necessary and Proper Clause

The Necessary and Proper Clause, often referred to as the “Elastic Clause,” is found in Article I, Section 8, Clause 18 of the United States Constitution. The clause states:

“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.”

Here’s a breakdown of its significance:

Function: This clause provides Congress with the authority to enact laws that are deemed necessary and proper to execute its enumerated powers, as well as other powers granted to any part of the federal government.

Flexibility: It gives Congress flexibility in interpreting and implementing the powers explicitly listed in the Constitution. This has been crucial for the expansion of federal government activities as the nation’s needs have evolved.

Historical Interpretation: McCulloch v. Maryland (1819) was a pivotal Supreme Court case where Chief Justice John Marshall interpreted this clause broadly, stating that the federal government can use means which are “convenient or useful” to execute its enumerated powers, even if not explicitly listed in the Constitution. This case upheld the creation of the Second Bank of the United States, arguing it was necessary for managing the federal government’s financial responsibilities.

Debates: The clause has been at the center of debates regarding the scope of federal power versus states’ rights. Critics argue it allows for too much federal overreach, while proponents see it as essential for the government to respond to changing conditions and needs.

Impact on Modern Legislation: The Necessary and Proper Clause has been used to justify a wide array of federal actions and agencies, from the regulation of commerce to the establishment of departments not explicitly mentioned in the Constitution, like the Department of Education or the Environmental Protection Agency, through laws deemed necessary to carry out other constitutional functions.

Checks and Balances: While broad, the application of this clause is checked by the judiciary, which can rule on whether laws are indeed “necessary and proper.”

This clause is fundamental to understanding the growth and operation of the US federal government, providing a legal basis for many federal actions that might not be explicitly authorized by the text of the Constitution but are seen as essential for its effective operation.

Commerce Clause

The Commerce Clause is found in Article I, Section 8, Clause 3 of the United States Constitution, which states:

“The Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Here’s an overview of its significance:

Three Facets: The Commerce Clause encompasses three main areas:

• Interstate Commerce: Regulation of trade between states.

• Foreign Commerce: Regulation of international trade.

• Commerce with Indian Tribes: Regulation of trade with Native American tribes.

Expansion of Federal Power: Over time, the interpretation of the Commerce Clause has significantly expanded federal powers, particularly in regulating economic activities:

Gibbons v. Ogden (1824): This Supreme Court case broadly defined “commerce” to include all commercial intercourse, thus giving Congress extensive authority over interstate commerce, even when it involves activities within states if they have an interstate impact.

New Deal Era: During the 1930s, the Supreme Court further expanded the scope of the Commerce Clause during Franklin D. Roosevelt’s administration, allowing federal regulation of activities that, in aggregate, substantially affect interstate commerce (e.g., labor laws, agricultural production).

Modern Interpretation:

Wickard v. Filburn (1942): Even growing wheat for personal use was deemed within Congress’s commerce power because it affected supply and demand on a national scale.

United States v. Lopez (1995) and United States v. Morrison (2000): These cases showed a slight retreat from the broadest interpretations by limiting Congress’s power under the Commerce Clause when the activity regulated was not economic in nature or did not have a clear, substantial effect on interstate commerce.

Controversy and Limitations: The Commerce Clause has been a focal point for debates on federalism, with critics arguing that it allows for too much federal intrusion into state affairs. There’s ongoing discussion about what constitutes “commerce” and how directly an activity must affect it to be subject to federal regulation.

Impact on Legislation: It has been the basis for numerous federal laws regulating everything from civil rights (e.g., the Civil Rights Act of 1964, justified partly through its effect on interstate commerce) to environmental protection and healthcare (e.g., the Affordable Care Act, where the individual mandate was debated under this clause).

Current Relevance: The Commerce Clause continues to be central in legal and political debates, particularly in areas like internet regulation, healthcare, and climate change policies, where the line between federal and state authority is often contested.

The Commerce Clause is thus fundamental to understanding the balance of power between the federal government and the states, the scope of legislative authority, and the evolution of American federalism.

Departments and Agencies of the US Government

Executive Departments

There are 15 executive departments listed here, with those authorized directly by an enumerated power identified by (AUTH) appended to its listing. Each executive department is led by a Cabinet secretary (except for the Department of Justice, which is headed by the Attorney General):

Department of Agriculture (USDA)

Department of Commerce (DOC) (AUTH)

Department of Defense (DOD) (AUTH)

Department of Education (ED)

Department of Energy (DOE)

Department of Health and Human Services (HHS)

Department of Homeland Security (DHS) (AUTH)

Department of Housing and Urban Development (HUD)

Department of the Interior (DOI)

Department of Justice (DOJ) (AUTH)

Department of Labor (DOL)

Department of State (DOS)

Department of Transportation (DOT)

Department of the Treasury (AUTH)

Department of Veterans Affairs (VA)

A quick review of this list shows only 5 of the 15 Executive Departments are authorized directly by the powers enumerated in the Constitution. There may be some question as to the necessity of a department whose justification is through the Necessary and Proper Clause or the Commerce Clause, as these clauses are open to interpretation, and those things justified under them may change.

As it stands, in addition to Congress and the Post Office, the Departments of Commerce, Defense, Homeland Security, Justice, and Treasury are the only federal government departments authorized by the Constitution, and those departments are only justified in performing those actions enumerated in the Constitution. Any actions, powers, or responsibilities added to the enumerated power may not me authorized.

Those departments not listed as authorized may have some duties or tasks that fall under the enumerated powers. These responsibilities should be transferred to the department having majority responsibility for the enumerated power, and the transferring department should be dismantled. The functions formerly provided by these departments can devolve to the states.

Our next article on this subject will be out in about a week. We will start discussions on the departments not authorized under the enumerated powers and look to determine “should they stay or should they go.”

We look forward to seeing you next time.

The people in Western North Carolina still need help, and it’s cold and wet in the mountains. We continue to ask that you do whatever you can to assist them.

We continue to recommend Samaritan’s Purse or Mercury One as already on the ground and doing excellent work. Thank you.

If you like what you’ve read, take a look at Jack’s Substack

Jack Sotallaro

Continuity planning, civilian and military