History

Ranking Congress’s Enumerated Powers By How Cool It’d Be To Just Give Them Away To The President

On June 21, 2025, President Trump (47) (age: 79) announced that the United States had bombed nuclear facilities in Iran. Separate from whether bombing another country in the Middle East is a good policy choice, the process by which the United States chose to bomb Iran is notable. It was the President, as Commander in Chief, who unilaterally authorized the strikes. Congress has not declared war against Iran. Further, the administration has not even cited an “Authorization for the Use of Military Force”—like the AUMF of 2001 or AUMF of 2002—as a Congressional blessing.1See The Day After U.S. Strikes on Iran’s Nuclear Program: A Policy and Legal Assessment, Just Security (June 22, 2025) (“[T]he Trump administration has not invoked any existing statutory basis. . . to justify the operation”).

Legally, it should be a problem that the President acted without any authority from Congress. This is because Article I, Section 8, clause 11 gives Congress the exclusive power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Politically, Congress is completely feckless and shows no hope of retaking its rightful place in Constitutional order.2See generally The Article I Initiative of the Federalist Society So why stop at War Powers? There’s 18 clauses of enumerated powers in Article I, Section 8 of the Constitution. Let’s see which other clauses would be cool to just totally give away to the President. Follow clauses listed in ascending levels of coolness.

Clause 7: Post Offices

To establish Post Offices and post Roads

This is a real snoozer. In fact, this was one of the first enumerated powers that Congress tried to give away, just a year after the Constitution came into effect. See Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 350-356 (2021) (“The first semiserious nondelegation objection in the early Republic came during the Second Congress’s debate over the nation’s post roads”). The President could establish all the post offices and build as many public roads as he wants unilaterally, I don’t think this would excite me.

Clause 15: Calling Militias

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

Again, Congress delegated this power away almost immediately, in both 1792 and 1795, and the Supreme Court upheld it as constitutional soon after. See 1 Stat. 264; 1 Stat. 424; Martin v. Mott, 25 U.S. 19 (1827). Apparently the only person who thought this delegation was too rad was Judge Charles Breyer. See Newsom v. Trump, No. 25-3727 (9th Cir. June 19, 2025). This clause has potential, but it’s hard to see something as cool when it’s been the baseline for 2+ centuries.

Clause 6: Counterfeiters

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States

Even if counterfeiters were sentenced to life in prison for floating fugazi fivers by Presidential fiat, this does nothing for me. There’s already an absurd amount of federal crimes, including crimes by virtue of Executive Branch regulation. See generally Harvey A. Silvergate, Three Felonies a Day: How the Feds Target the Innocent (June 7, 2011). And we already have overly punitive sentences for federal crimes. Going the opposite way, the President already has the power, arguably, to provide for no punishment for counterfeiting by pardoning all counterfeiters or prospectively announcing a program like Deferred Action for Childhood Arrivals Counterfeiting Actors.

Clause 2: Borrowing

To borrow Money on the credit of the United States

As of June 20, 2025, the National Debt was $36,215,873,428,835.86, which was 123% of the Gross Domestic Product of the United States. See Debt to the Penny, U.S. Treasury. That’s very bad, and our politics is so messed up that no one has an incentive to actually do anything about this impending global economic disaster the likes of which we haven’t experienced in generations if not centuries.

All of that borrowing was signed on to by one President or another. I don’t see how it could get much better or much worse if the President had exclusive authority to borrow. So, not cool.

Clause 8: Intellectual Property

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

Shut up you nerds no one cares if the President rewrote all of copyright or patent law.

Clause 16: Organizing Militias

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

The militias were way more important back in the Founding era where the Framers did not think that the United States would always have a standing Army or Navy. So instead there is the complicated State/Federal structure of something called the militia, now named the national guard. In 1933, Congress essentially avoided this hassle by making all state militia members also enlist in the federal Army as reserve members. See National Guard Act of 1933, Pub. L. No. 73–64, ch. 87, § 1, 48 Stat. 153; Robert Leider and Gregory Maggs, Militia Organization Clause (“The end result of this system is that neither the Calling Forth Clause nor the federal-state division of the militia in this clause have much practical application today. Using dual enlistment, Congress may activate entire units of the National Guard, sending them abroad for offensive wars in their capacity as Army Reserve soldiers.”). Even if the President were given the power to unwind this dual-enlistment workaround and did so to satisfy some legal autism, the end result would be a system that is dwarfed in significance by the standing Army and Navy.

Clause 14: Land and Naval Forces Rules

To make Rules for the Government and Regulation of the land and naval Forces

This clause allows Congress to establish a military justice system (think courts-martial), which it has done so and is currently codified as the Uniform Code of Military Justice. If Congress didn’t set those rules, I think the President as Commander in Chief would have unfettered discretion to issue non-judicial punishment among the military. Even the ancient Roman punishment of decimation: beheading every tenth soldier of a unit which retreated or had defections. See Franklin D. Rosenblatt, Nonjudicial Punishment, 68 Vill. L. Rev. 807, 811 (2024). So giving this power to the President would just be unwinding a separation of power. But the extent to which the President would be unfettered, that would be sort of cool.

Clause 12: Army

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

The power to raise an army, not just command one, is real king/emperor stuff. If the President could always point to his army, that would settle a lot of President-Congress disputes (if we ever had those). One added twist is the power to raise a navy is separate (see next clause). I think it would be very interesting if two branches of government controlled two different types of armed forces. That’s an intriguing variation on your standard emperor-general story.

Clause 13: Navy

To provide and maintain a Navy

If the President only had the choice of an army or navy, I think it would be cooler if the President had power over the Navy. Even if Congress controlled the Army, the President could be off on an aircraft carrier running a separate sea-based government.

You will notice that the Constitution of 1790 unsurprisingly does not mention an air force (a separate U.S. military department since 1947) or a space force (2019).3To round out the branches, the Marine Corps and Coast Guard are service branches within the Department of the Navy The predecessor of today’s Air Force was part of the Army, and the U.S. Navy is the second biggest air force in the world. It’s not crystal clear how the Air Force is constitutional, but one argument is that because use of planes is constitutional if conducted by the Army or Navy, it must be constitutional if done independently. See Scott Bomboy, The Space Force and the Constitution, Nat’l Const. Ctr. (Aug. 22, 2018). So it would be a messy constitutional battle to see whether the Congress or President would get to keep the Air Force, or each could make their own.

Clause 10: Maritime Crimes

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations

Now we’re getting into a couple clauses where Congress makes substantive laws applicable to the general population, not laws relating to the operation of government. “Law of Nations” is understood to mean public international law. There is some debate on what the power to “define” is, but arguably Congress has under-exercised its authority to define conduct as offending its understanding of international law. See Alex H. Loomis, The Power to Define Offences Against the Law of Nations, 40 Harv. J.L. & Pub. Pol’y 417, 419 nn.5-6 (2017) (collecting disagreeing authorities). So it would be very very interesting if a President could say that conduct offends not just any thing related to commerce (below), but some amorphous international norm that only he has divined.

Clause 4: Uniform Laws

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States

The Constitution as written does not allocate to the federal government the power to control immigration per se. Rather, it only allows Congress to choose how immigrants, however admitted by the States, become U.S. citizens. I think that it would be just tubular if instead of granting immigration status to Afrikaners or Venezuelans, the President could cut to the chase and just make them citizens. Open borders galore. Or, closed borders except for individuals that match the President’s peculiar preferences. What could go wrong?

(For those looking for bankruptcy opinions, see Clause 8 (sorry Troy McKenzie)).

Clause 3: Commerce

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

Because of and since the New Deal, the Commerce Clause—specifically, the interstate Commerce Clause—is Congress’s default explanation for why it has the power to regulate something. The reason that growing your own crops on your own soil for personal consumption can be banned federally? Because that affects the prices and consumption of goods that do travel in interstate commerce. See Wickard v. Filburn, 317 U.S. 111 (1942); Gonzales v. Raich, 545 U.S. 1 (2005). The reason that Congress can dictate the admission policies at a club in Arkansas serving only Arkansas whites? Because the vinyl records were manufactured in other states. See Daniel v. Paul, 395 U.S. 298 (1969). Basically the only thing not commerce among the several states is domestic abuse and guns near schools. United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).

This conception that Congress has the power to regulate anything which has an effect on the economy as a whole would be so neat if it applied to the President instead. California or Texas causing problems for the President’s agenda? Guess what, it’s now illegal to sell avocados or cattle. Any type of profession (like lawyers or doctors) getting uppity with the President and challenging his executive orders? Boom, federal licensure requirement making it onerous if not impossible for any of those people to make a living. That’d be hype.

Clause 1: Taxing and Spending

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

In 2012, the Supreme Court held that even the Commerce Clause didn’t allow Congress to regulate commerce into existence. To a previous analogy, Congress can prohibit the sale of California avocados but cannot mandate everyone buy a stalk of Iowa corn. Except that is, Congress can accomplish the same thing if it uses its taxing power. See National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). As the architect of the Affordable Care Act, Jonathan Gruber, recognized, it is more politically palatable to hide mandates and subsidies (transfers from one group of people to another) in the tax code rather than being open about them because the American voter is “too stupid to understand the difference” and the collective lack of economic understanding can be exploited. See also, Avik Roy, ACA Architect: ‘The Stupidity Of The American Voter’ Led Us To Hide Obamacare’s True Costs From The Public, Forbes (Dec. 18, 2014).

Now imagine if the President could make the American public buy anything on the penalty of taxes (and imprisonment for not paying those taxes). How cool would it be for everyone in the US to have the same Trump phone? Everyone has the same bottle of Gavin Newsom’s PlumpJack wine4The same PlumpJack winery, and Gavin Newsom personally, that banked with Silicon Valley Bank, when the Federal Deposit Insurance Corporation bailed out all depositors in that bank’s collapse. See Ken Klippenstein, Cheering Silicon Valley Bank Bailout, Gavin Newsom Doesn’t Mention He’s a Client (Mar. 14, 2023). Another great use of the Commerce Clause. with every meal under penalty of IRS agents? Wicked cool.

Of course, there’s also just the straightforward ability to raise taxes. Imagine how cool it would be if the President could change taxes with a tweet and shape markets based on how he feels that morning? Oh what’s that? Congress already delegated that power and keeps letting that happen? Coolio.

Clause 17: Enclave Clause

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 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

Congress has the power to govern the District of Columbia. (In 1973, Congress enacted the District of Columbia Home Rule Act, 87 Stat. 774 which gave D.C. a Mayor and council that can do things subject to Congressional review.) I think it would be sweet if the President had that power and could govern the District around the White House. The President could have the streets decorated for just himself. Maybe control the D.C. Attorney General and prosecute every Congressman and aide for jaywalking and littering. Health inspections for any business in D.C. that probably votes the wrong way. Just really make it the seat of the power.

Clause 5: Standards

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

Article I, Section 8, Clause 5 is the basis for the National Institute of Standards and Technology, which develops a ton of standards beyond just how much a tonne is. See Ben Stein, Why You Need Standards, NIST (May 23, 2022). This is useless government overreach but whatever.

The really cool part is that the Supreme Court, in outrageous decisions known as the Gold Clause Cases, held that Congress’s power to regulate money value means it can abrogate the value of private contracts calling for payment in gold currency and make parties pay in U.S. paper currency. See Norman v. Baltimore & Ohio R. Co., 294 U.S. 240 (1935). So all those trillions of dollars in contracts that countless of parties have denominated in dollars? Too bad, now everyone has to pay in Trump NFTs and cryptocurrency. Great job, New Deal-era government. Fuck. I mean, cool beans.

Clause 9: Courts

To constitute Tribunals inferior to the supreme Court

Congress has set up two tiers of courts inferior to the Supreme Court of the United States: District Courts that are largely trial courts, and Courts of Appeals that are largely appellate courts. Congress has established 94 U.S. District Courts with 677 judgeships, and 13 U.S. Courts of Appeals with 179 judgeships. See 28 U.S.C. §§ 81-144; FAQs: Court Information, U.S. Courts; Status of Article III Judgeships — Judicial Business 2024, U.S. Courts. Congress has the ability to limit the cases which the courts can hear and remedies that can be entered, called “jurisdiction stripping”. See Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938); Patchak v. Zinke, 138 S. Ct. 897 (2018).

Imagine how cool it would be if the President could decide the courts that decide his cases or couldn’t decide his cases. He could put up so many obstacles to ever reaching the Supreme Court, or maybe even limit the jurisdiction of the Supreme Court, that no pesky judge would ever get in the way of the coolness.

Clause 18: Necessary and Proper

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.

Screw the details, what if Congress just gave the power to the President to do everything if he felt like it? He could declare an emergency and do all of the things Article I says are for Congress in all those clauses, like tax, make war, or make substantive law. That’d be cool but probably never happen. Right? Right? Fuck.

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