Are all Laws Necessary?

If anyone were to take the time to read the Federal Register of Laws, in which all laws passed by Congress are recorded since its first session in 1789, and they read an average of 700 pages per week, it would take them over 25,000 years to read them all. This number becomes even more daunting every two years, since Congress passes an average of 2,000 bills during each session. In light of this impossible task, the old adage “ignorance of the law is no excuse” is completely unreasonable. As a matter of fact, this quantity of laws makes unwitting lawbreakers out of every person living in America. Consequently, to claim all these laws are necessary is either a gross exaggeration or an outright lie, because in many cases Congress has exceeded their constitutional authority in passing them.

Many of these extraneous laws have been passed with the idea Congress has the constitutional authority “To make all Laws which shall be necessary and proper.”[1] At first glance, this clause seems to give Congress unlimited authority to pass nearly anything they choose, but the remainder of the clause states “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.” This means Congress only has authority to make laws necessary and proper for executing the powers defined in the Constitution.

Although, Congress has a few other powers delegated to it in other sections and articles, most of its powers are defined in Article I Section Eight.  Generally, these powers include collecting taxes, spending, borrowing, regulating commerce, establishing rules for citizenship, establishing bankruptcy laws, coining and regulating the value of money, standardizing weights and measures, punishing counterfeiters, establishing post offices and post roads, passing copyright and patent laws, establishing inferior federal courts, defining and punishing crimes on the high seas, declaring war, raising and supporting Armies and providing and maintaining a Navy, establishing rules for the armed forces, calling forth the militia, administering the seat of government (Washington DC), and administering federal property.

It is important for citizens to understand the powers delegated to Congress to know when Congress has exceeded them. If Congress is attempting to pass laws not directly connected to a delegated power expressly written in the Constitution, they have exceeded their authority and need to be held accountable. This concept is unambiguously evident by the founders granting Congress the power to pay debts, because if they had only granted them the power to collect taxes without the authority to spend the collected revenue, Congress would not have spending power. One might assume this is implied, but the constitutional delegates left nothing to anyone’s imagination by including the power to pay the debts of the United States. Accordingly, interpreters of the Constitution must use extreme caution when assuming an implied power exists in the absence of a specified one.

Many of the delegated powers are also limited by specified uses connected to them. For example, outside of a declaration of war, Congress can only call “forth the [armed forces] to execute the Laws of the Union, suppress Insurrections and repel Invasions;” and Congress has exclusive legislative authority over property for the “Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” These purposes restrict Congress from calling forth the armed forces, without a declaration of war, to only when they are upholding the Constitution or defending the nation from an invasion. Congress also only has exclusive legislative authority over property, outside of the District of Colombia, when the property is for national defense purposes. Any laws executing delegated powers for purposes other than those defined are unauthorized.

Additional limitations on Congress’s legislative powers are found in the original intent and definitions of the words used in the Constitution. The meaning of words in society may change over time, but the meaning of words in a contract cannot; they must be defined according to those who agreed upon them at the time of the agreement. Any interpretation, other than original intent, is a breach of our national contract, because it changes the Constitution without going through the constitutionally mandated amendment process from Article V. For example, the definition of ‘establish’ in the Constitution means to “to set up or make firm,” therefore based on original intent Congress is only authorized to set up post offices, not to run them.

Some may wonder why the Supreme Court does not restrain Congress if it routinely exceeds its constitutional authority. Although, the Supreme Court is a check and balance to the authority of the other two branches at the national level, it was not created to be the watchdog of Congress. That was the responsibility of the State legislatures and the electorate prior to the 17th Amendment. Now it is solely the responsibility of the electorate since both Congressmen and Senators are elected via popular vote.  Additionally, the Supreme Court generally only gets involved if there is a contentious law passed in which lawsuits challenge the constitutionality of the law, like the Affordable Care Act.

With more laws than any one person can read in multiple lifetimes, it is fair to say America is over-regulated. A solution to this could entail engaging Congress in reviewing all laws in the Federal Register to ensure each one passes strict original intent criteria and repealing those that do not meet such a standard. In the short run, this would keep them from passing more unnecessary and improper laws. In the long run, Congress could be restricted from passing unnecessary laws by a constitutional amendment requiring them to debate and vote on every clause of every bill on the floor of both the House and the Senate prior to sending the bill to the President. In addition to slowing down the legislative process, which would hopefully limit Congress to focusing on constitutional requirements, the public would also have a better record on where their Congressman or Senators stand on every aspect of bills, including earmarks, passed through Congress to ensure that all laws passed are necessary and proper.


[1] US Constitution Article I Section 8

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5 thoughts on “Are all Laws Necessary?

  1. A step forward in guiding our elected officers back to Constitutional bedrock is through a state recall process. Currently eighteen states have recall provisions in their State laws but to date court precedence has made this endeavor unsuccessful. Obstacles aside, states possessing a sound understanding of the Constitution ought to pass a law granting state legislators the right to recall their US Congress and US Senate representatives for violating their oath of office and then summarily execute this law to begin recalling mischievous federal legislators. It would only take a couple of examples to send a loud and clear message to our federal representatives the We The People are finished tolerating abuses to our nation’s supreme law of the land.
    Please read this link for further information and a summary of each state: http://www.uscitizensassociation.com/pdfs/Recalling%20U.S.%20Senators%20and%20Congressmen.pdf

    • Although we need a better mechanism to ensure US Representatives and Senators uphold the Constitution, I would not advocate giving recall authority over US Representatives to State legislatures. They are elected by their Congressional district and they only serve two year terms anyway, so recalling them would be a mute point since the process would take longer than just waiting for the next election.

      Senators, on the hand, should be accountable to their State legislature and prior to the 17th they were. The 17th Amendment did much to upset a vital check and balance the founders instituted in our system of government and it should be repealed as a failed experiment.

  2. ” A solution to this could entail engaging Congress in reviewing all laws in the Federal Register to ensure each one passes strict original intent criteria and
    repealing those that do not meet such a standard.”
    So, the States pass an amendment requiring a Constitutional review of the Federal Register before ANY new legislation is passed.
    Since we know there is no way Congress could debate much less read 700 pages per week…lets say they get thru half that per week. Assuming your math is correct, it would take 50,000 years to get thru the existing Register – and 50,000 years before they could pass another law. I like your idea.

    • That would certainly keep them from doing any more damage, but that is not what I proposed and I apologize if it appeared as if I insinuated it. You know as well as I do government is a necessary evil, so they must be able to legislate and that is why the amendment would not restrict them from passing new laws, as long as those new laws met an original intent standard. Your calculations are correct, therefore some quota system would need to be made to encourage them to do what they are required by law to do. Unfortunately, that has not made them live up to the law yet, so other consequences would need to be in place as well. Of course, all of this is fun to think about, but the likelihood of it being implemented is extremely slim.

  3. Rather than attempting to conjur original thoughts I will provide quotation to a clear and succinct message already delivered: “It is a great mistake to suppose that the paper we are to propose will govern the United States. It is the men whom it will bring into the Government and interest in maintaining it that is to govern them. The paper will only mark out the mode and the form. Men are the substance and must do the business.” Maryland Delegate – John Francis Mercer, Independence Hall, Philadelphia, PA. August 17, 1787

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