Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Two important doctrines of Constitutional Law--that the Federal Government is one of enumerated powers and that legislative power may not be delegated--are derived in part from this section. The classical statement of the former is that by Chief Justice Marshall in McCulloch _v._ Maryland: "This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted."[1] That, however, "the executive power" is not confined to the items of it which are enumerated in article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is today the doctrine of the Court;[2] and a similar latitudinarian conception of "the judicial power of the United States" was voiced in Justice Brewer's opinion for the Court in Kansas _v._ Colorado.[3] But even when confined to "the legislative powers herein granted," the doctrine is severely strained by Marshall's conception of some of these as set forth in his McCulloch _v._ Maryland opinion: This asserts that "the sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government";[4] he characterizes "the power of making war," of "levying taxes," and of "regulating commerce" as "great, substantive and independent powers";[5] and the power conferred by the "necessary and proper" clause embraces, he declares, "all [legislative] means which are appropriate" to carry out "the legitimate ends" of the Constitution, unless forbidden by "the letter and spirit of the Constitution."[6] Nine years later, Marshall introduced what Story in his Commentaries labels the concept of "resulting powers," those which "rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated."[7] Story's reference is to Marshall's opinion in American Insurance Company _v._ Canter,[8] where the latter says, that "the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."[9] And from the power to acquire territory, he continues, arises as "the inevitable consequence" the right to govern it.[10] Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds which ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the "rights expressly given, and duties expressly enjoined" by the Constitution;[11] the power to impart to the paper currency of the Government the quality of legal tender in the payment of debts;[12] the power to acquire territory by discovery;[13] the power to legislate for the Indian tribes wherever situated in the United States;[14] the power to exclude and deport aliens;[15] and to require that those who are admitted be registered and fingerprinted;[16] and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. In the words of Justice Sutherland in United States _v._ Curtiss-Wright Export Corporation,[17] decided in 1936: "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers _then possessed by the states_ such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states.... That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source.... A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union....