Implied Powers

Implied Powers


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The U.S. Constitution (Article I, Section 8, Clause 18) grants to Congress the power to enact laws to carry out the “enumerated powers” (Clauses 1-17) that are specifically assigned to the federal government.

This clause became the center of controversy from the nation's early days when Alexander Hamilton and Thomas Jefferson tangled over the constitutionality of a national bank. Their arguments, in one form or another, persist today:

  • The “loose constructionists” (the Hamiltonians or Federalists) viewed Clause 18 as an opportunity to increase federal power.
  • The “strict constructionists” (the Jeffersonians or Anti-Federalists) believed that Clause 18 limited federal power. In their opinion, Congress could legitimately exercise only specified functions (Clauses 1-17); to do otherwise would be a violation of the Tenth Amendment, which specified that those powers not delegated to the federal government are reserved to the states or the people.

President George Washington sided with Hamilton and supported the establishment of the First Bank of the United States. The Federalist position regarding “implied powers” became part of the national fabric largely through the decisions of the U.S. Supreme Court under John Marshall.

Clause 18 is also known as the “elastic clause” or the “necessary and proper clause.”


According to the Articles of Confederation, "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated" (emphasis added). Thus, the Continental Congress had no powers incidental to those "expressly delegated" by the Articles of Confederation. [2] By contrast, the Necessary and Proper Clause expressly confers incidental powers upon Congress, which no other clause in the Constitution does so by itself. [2]

The draft clause provoked controversy during discussions on the proposed constitution, and its inclusion became a focal point of criticism for those opposed to ratification of the constitution. Anti-Federalists expressed concern that the clause would grant the federal government boundless power, but Federalists argued that the clause would permit only execution of powers that had been granted by the constitution. Alexander Hamilton spoke vigorously for the second interpretation in Federalist No. 33. At the time, James Madison concurred with Hamilton and argued in Federalist No. 44 that without the clause, the constitution would be a "dead letter." At the Virginia Ratifying Convention, Patrick Henry took the opposing view by saying that the clause would lead to limitless federal power, which would inevitably menace individual liberty. [3]

For several decades after the Constitution was ratified, interpretation of the Necessary and Proper Clause continued to be a powerful bone of contention between the Democratic-Republican Party, the Federalist Party, and several other political parties. The first practical example of that contention came in 1791, when Hamilton used the clause to defend the constitutionality of the new First Bank of the United States, the first federal bank in the new nation's history. Concerned that monied aristocrats in the North would take advantage of the bank to exploit the South, Madison argued that Congress lacked the constitutional authority to charter a bank. Hamilton countered that the bank was a reasonable means of carrying out powers related to taxation and the borrowing of funds and claimed that the clause applied to activities that were reasonably related to constitutional powers, not only those that were absolutely necessary to carry out said powers. To embarrass Madison, his contrary claims from the Federalist Papers were read aloud in Congress: [4]

No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized wherever a general power to do a thing is given, every particular power for doing it is included.

Eventually, Southern opposition to the bank and to Hamilton's plan to have the federal government assume the war debts of the states was mollified by the transfer of the nation's capital from its temporary seat in Philadelphia to Washington, DC,a more southerly permanent seat on the Potomac, and the bill, along with the establishment of a national mint, was passed by Congress and signed by President George Washington. [5]

McCulloch v. Maryland Edit

The clause, as justification for the creation of a national bank, was put to the test in 1819 during McCulloch v. Maryland [6] in which Maryland had attempted to impede the operations of the Second Bank of the United States by imposing a prohibitive tax on out-of-state banks, the Second Bank of the United States being the only one. In the case, the Court ruled against Maryland in an opinion written by Chief Justice John Marshall, Hamilton's longtime Federalist ally. Marshall stated that the Constitution did not explicitly give permission to create a federal bank, but it conferred upon Congress an implied power to do so under the Necessary and Proper Clause so that Congress could realize or fulfill its express taxing and spending powers. The case reaffirmed Hamilton's view that legislation reasonably related to express powers was constitutional. Marshall wrote:

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.

McCulloch v. Maryland [6] held that federal laws could be necessary without being "absolutely necessary" and noted, "The clause is placed among the powers of Congress, not among the limitations on those powers." At the same time, the Court retained the power of judicial review established in Marbury v. Madison by declaring that it had the power to strike down laws that departed from those powers: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted [sic] to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."

As Marshall put it, the Necessary and Proper Clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted." [7] [8] Without that clause, there would have been a dispute about whether the express powers imply incidental powers, but the clause resolved that dispute by making those incidental powers be expressed, instead of implied. [8]

In a related case after the American Civil War, the clause was employed, in combination with other enumerated powers, to give the federal government virtually complete control over currency. [9]

The clause has been paired with the Commerce Clause to provide the constitutional basis for a wide variety of federal laws. For instance, various reforms involved in the New Deal were found to be necessary and proper enactments of the objective of regulating interstate commerce. [10]

Indeed, the influence of the Necessary and Proper Clause and its broader interpretation under McCulloch v. Maryland (1819) in American jurisprudence can be seen in cases generally to be thought to involve simply the Commerce Clause.

In Wickard v. Filburn (1942), the Supreme Court upheld a federal statute making it a crime for a farmer to produce more wheat than was allowed under price and production controls, even if the excess production was for the farmer's own personal consumption. The Necessary and Proper Clause was used to justify the regulation of production and consumption. [11]

Also, in addition to both clauses being used to uphold federal laws that affect economic activity, they also were used to justify federal criminal laws as well. [12] For example, Congress in the Federal Kidnapping Act (1932) made it a federal crime to transport a kidnapped person across state lines because the transportation would be an act of interstate activity over which the Congress has power. It has also provided justification for a wide range of criminal laws relating to interference with the federal government's rightful operation, including federal laws against assaulting or murdering federal employees. [ citation needed ]

In National Federation of Independent Business v. Sebelius (2012), the Supreme Court ruled that the individual mandate of the Patient Protection and Affordable Care Act cannot be upheld under the Necessary and Proper Clause. Chief Justice John Roberts ruled that the mandate cannot "be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act's other reforms. Each of this Court's prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise lie outside it. Even if the individual mandate is "necessary" to the Affordable Care Act's other reforms, such an expansion of federal power is not a "proper" means for making those reforms effective." [13]

According to its proponents, the ruling returns the clause to its original interpretation, outlined by John Marshall in McCulloch v. Maryland. According to David Kopel, the clause "simply restates the background principle that Congress can exercise powers which are merely 'incidental' to Congress's enumerated powers." [14]

The specific term "Necessary and Proper Clause" was coined in 1926 by Associate Justice Louis Brandeis, writing for the majority in the Supreme Court decision in Lambert v. Yellowley, 272 U.S. 581 (1926), which upheld a law restricting medicinal use of alcohol as a necessary and proper exercise of power under the 18th Amendment, which established Prohibition.

The phrase has become the label of choice for this constitutional clause. It was universally adopted by the courts and received Congress's imprimatur in Title 50 of the United States Code, Section 1541(b) (1994), in the purpose and policy of the War Powers Resolution. [15]


The concept of implied powers has existed since the Constitution was written, though the phrase itself has been around for longer than the Constitution itself has. In fact, it’s existed in political theory since at least the 1780s. An early work from 1785 references the implied Powers and Privileges of political bodies in Ireland. Since Ireland and its neighbors were already established as sovereign nations, it makes sense that the United States wouldn’t be the first to use the phrase. The phrase became more commonly associated with the United States and its Constitution as late as the 1810s.

The concept of implied powers became important in establishing the constitutionality of the First Bank of the United States. This bank would handle the war debt from the American Revolution and would help standardize the currency of the newly independent country. It was eventually built, but when it was proposed, citizens protested, saying that it didn’t abide by the founding document (the Constitution). In 1791, Alexander Hamilton stated that while the federal government is granted explicit powers via the Constitution, he also believed that the authority of implied powers should be recognized as an important part of the government’s ability to function properly. He believed that these implied powers should be treated as equal to the more explicitly conferred powers. He also stated that many other powers that the government exerts are actually only implied as well.

In 1819, the United States Supreme Court arbitrated the case McCulloch v. Maryland. The case was to settle a dispute about chartering the Second Bank of the United States. There were concerns about its constitutionality, since it was controlled by private stockholders, yet also served as the depository for federal dollars. State banks didn’t like this because this positioned the Second Bank as a direct competitor. And indeed, the state banks started failing in 1818 and blamed the Second Bank for their troubles.

The Second Bank also refused to pay the tax on banks not chartered within the state, which led to it being sued by the state of Maryland. Led by Chief Justice John Marshall, Hamilton’s statements about implied powers in government were officially affirmed. The court found that Congress had powers explicitly laid out by the Constitution, and also had the authority to do what it needed to do beyond the Constitution.

In this case, the Supreme Court ruled that although the Constitution didn’t mention the creation of banks at all, Congress did indeed have the power to do so via these implied powers. The power came through the Necessary and Proper Clause in Article I of the Constitution. This specifically relates to the creation of a national bank because the bank would serve as an agent, carrying out tasks explicitly conferred to the government, such as collecting taxes. The court case also ruled that the tax by Maryland on the Second Bank of the United States was unconstitutional.


The Implied Powers of Congress

The expressed powers of Congress are listed in Article I of the U.S. Constitution (since they're listed out, they're also called the enumerated powers). Congress also has implied powers, which are based on the necessary and proper clause, or elastic clause. This is a provision in the Constitution which gives Congress right to make any laws needed to carry out their expressed powers. Congressional power has grown over several centuries, bolstered by Supreme Court decisions

The Constitution gives expressed powers to Congress in Article 1, Section 8.

In McCulloch v. Maryland, the Supreme Court under Chief Justice John Marshall holds that the powers to tax, borrow, and coin money give Congress the implied power to establish a national bank. The First Bank of the United States under Alexander Hamilton had closed the opening of a second bank was challenged on grounds of constitutionality.

Gibbons v. Ogden is the first commerce clause case to reach the Supreme Court. The powers of Congress are expanded, as part of their ability to regulate interstate commerce this includes regulations on transit, shipping, industry, and more. This is another important case overseen by Justice Marshall.

The U.S. government issues its first legal tender notes, which are popularly called greenbacks.

In Hepburn v. Griswold the Supreme Court rules that the Constitution does not authorize the printing of paper money.

The Court reverses its position on the printing of paper money and holds that issuing paper money is a proper use of the currency power in the Legal Tender cases. The decision in Juliard v. Greenman (1884) reaffirms this holding.

The Sherman Antitrust Act, based on the commerce power, regulates monopolies and other practices that limit competition.

The Wagner Act, based on the commerce power, recognizes labor's right to bargain collectively.

The Supreme Court upholds the Social Security Act of 1935 as a proper exercise of the powers to tax and provide for the general welfare in Steward Machine Co. v. Davis and Helvering v. Davis.

The Interstate and National Highway Act, based on the commerce and war powers, provides for a national interstate highway system.

The Supreme Court holds the public accommodations provisions of the Civil Rights Act of 1964 as a valid exercise of the commerce power in Heart of Atlanta v. United States.

Congress amends the Social Security Act of 1935 to create Medicare, which covers hospital and other health-care costs of the elderly.

With the War Powers Resolution of 1973, Congress claims the right to restrict the use of American forces in combat when a state of war does not exist.

The Americans with Disabilities Act, based on the commerce power, prohibits discrimination against the physically impaired.

In United States v. Lopez, the Court strikes down the Gun-Free School Zone Act of 1990 on the grounds that the federal government invades reserved powers of the states with this legislation.


Executive Orders Throughout History

Virtually every president since George Washington has used the executive order in different ways during their administrations.

Washington’s first order, in June 1789, directed the heads of executive departments to submit reports about their operations. Over the years, presidents have typically issued executive orders and other actions to set holidays for federal workers, regulate civil service, designate public lands as Indian reservations or national parks and organize federal disaster assistance efforts, among other uses.

William Henry Harrison, who died after one month in office, is the only president not to issue a single executive order Franklin D. Roosevelt, the only president to serve more than two terms, signed by far the most executive orders (3,721), many of which established key parts of his sweeping New Deal reforms.

Executive orders have also been used to assert presidential war powers, starting with the Civil War and continuing throughout all subsequent wars. During the Civil War, Abraham Lincoln controversially used executive orders to suspend habeas corpus in 1861 and to enact his Emancipation Proclamation in 1863.

And during World War II, FDR notoriously issued an executive order mandating the internment of Japanese Americans in 1942.

Several presidents have used executive orders to enforce civil rights legislation in the face of state or local resistance. In 1948, Truman issued an executive order desegregating the nation’s armed forces, while Dwight D. Eisenhower used an order to send federal troops to integrate public schools in Little Rock, Arkansas, in 1957.


Implied Powers of the Three Branches of Government

In addition to the specific powers of each branch that are enumerated in the Constitution, each branch has claimed certain implied powers, many of which can overlap at times. For example, presidents have claimed exclusive right to make foreign policy, without consultation with Congress.

In turn, Congress has enacted legislation that specifically defines how the law should be administered by the executive branch, while federal courts have interpreted laws in ways that Congress did not intend, drawing accusations of “legislating from the bench.”

The powers granted to Congress by the Constitution expanded greatly after the Supreme Court ruled in the 1819 case McCulloch v. Maryland that the Constitution fails to spell out every power granted to Congress.

Since then, the legislative branch has often assumed additional implied powers under the “necessary and proper clause” or 𠇎lastic clause” included in Article I, Section 8 of the Constitution.


National Emergencies Act

In 1976, Congress enacted the National Emergencies Act, codified at 50 U.S.C. §§ 1601-51, in response to the continued existence of four declared national emergencies, the oldest of which had been in place for forty years. The Act did not revoke the outstanding emergency declarations, but instituted an expiration date on existing declared emergencies, barring further action. It also provided for a variety of termination methods, including the automatic termination of a national emergency upon its anniversary every year, if the President does not act to renew it.

For example, the state of emergency declared in Proclamation 7463 in response to the September 11 terrorist attacks was due to terminate most recently on September 14, 2016. However, President Obama continued the state of emergency past that date by following procedure established in the National Emergencies Act.

The four national emergencies that the Act was meant to address were:1

  • The 1933 banking crisis, in which President Roosevelt renewed the national emergency declaration of the Act of March 9, 1933 via Executive Order 6102 and prohibited the hoarding of gold.
  • The 1950 Korean War communism scare, in which President Truman declared a national emergency via Proclamation 2914.
  • The 1970 postal workers strike, in which President Nixon declared a national emergency via Proclamation 3972 and threatened to delivery mail in New York using the National Guard.
  • The 1971 inflation emergency, in which President Nixon declared a national emergency via Proclamation 4074 and imposed a temporary surcharge on imports to "strengthen the international economic position of the United States."

ENUMERATED, IMPLIED, RESULTING, AND INHERENT POWERS

Two important doctrines of constitutional law—that the Federal Government is one of enumerated powers and that legislative powers may not be delegated—are derived in part from this section. The classic statement of the former is 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.”34 That, however, “the executive power” is not confined to those items expressly enumerated in Article II was asserted early in the history of the Constitution by both Madison and Hamilton and is found in decisions of the Court35 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.36 But, even when confined to “the legislative powers herein granted,” the doctrine is severely strained by Chief Justice Marshall’s broad conception of some of these powers, as he described them in McCulloch v. Maryland. He asserts that “[t]he sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government”37 he characterizes “the power of making war, or levying taxes, or of regulating commerce” as “great substantive and independent power[s]”38 and he declares that the power conferred by the “necessary and proper” clause embraces all legislative “means which are appropriate” to carry out the legitimate ends of the Constitution, unless inconsistent “with the letter and spirit of the constitution.”39

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of “resulting powers,” which are those that “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.”40 Story’s reference is to Marshall’s opinion in American Ins. Co. v. Canter,41 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.”42 And from the power to acquire territory, Marshall continues, arises, as “the inevitable consequence,” the right to govern it.43

Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds that 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 Constitution44 the power to impart to the paper currency of the government the quality of legal tender in the payment of debts45 the power to acquire territory by discovery46 the power to legislate for the Indian tribes wherever situated in the United States47 the power to exclude and deport aliens48 and to require that those who are admitted be registered and fingerprinted49 and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. Thus, in United States v. Curtiss-Wright Export Corp.,50 decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated.

Yet, for the most part, these holdings do not, as Justice Sutherland suggested, directly affect “the internal affairs” of the nation they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those that have taken place under cover of the doctrine—the vast expansion in recent years of national legislative power in the regulation of commerce among the states and in the expenditure of the national revenues. Marshall laid the ground for these developments in some of the language quoted above from McCulloch v. Maryland.

Footnotes

34 17 U.S. (4 Wheat.) 316, 405 (1819). 35 See discussion under Article II, § 1, cl. 1, Executive Power: Theory of the Presidential Office, infra. 36 206 U.S. 46, 82 (1907). 37 17 U.S. (4 Wheat.) at 407. 38 17 U.S. at 411. 39 17 U.S. at 421. 40 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1256 (1833). See also id. at 1286 and 1330. 41 26 U.S. (1 Pet.) 511 (1828). 42 26 U.S. at 542. 43 26 U.S. at 543. 44 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616, 618–19 (1842). 45 Juilliard v. Greenman, 110 U.S. 421, 449–450 (1884). See also Justice Bradley’s concurring opinion in Knox v. Lee, 79 U.S. (12 Wall.) 457, 565 (1871). 46 United States v. Jones, 109 U.S. 513 (1883). 47 United States v. Kagama, 118 U.S. 375 (1886). 48 Fong Yue Ting v. United States, 149 U.S. 698 (1893). 49 Hines v. Davidowitz, 312 U.S. 52 (1941). 50 299 U.S. 304 (1936).

An Error and an Evil: The Strange History of Implied Commerce Powers

An underspecified doctrine of implied "reserved powers of the states" has been deployed through U.S. constitutional history to prevent the full application of McCulloch v. Maryland's concept of implied powers to the enumerated powers"in particular, the Commerce Clause. The primary rationales for these implied limitations on implied federal powers stem from two eighteenth and nineteenth century elements of American constitutionalism. First, the inability of pre-twentieth century judges to conceptualize a workable theory of concurrent federal and state power made it seem constitutionally necessary to limit the Commerce Clause and to refrain from applying the concept of implied powers to the Commerce Clause in order to preserve a substantial scope for state regulation. Second, because slavery so obviously fed into interstate and international trade, a robust application of implied powers to the Commerce Clause could naturally lead to a congressional power to "interfere with" the institution of slavery within the states. Antebellum judges and political leaders saw the implied limitation of such a power as an inescapable element of the constitutional bargain. These twin supports of the implied limitation concept have been eliminated from American constitutional law, yet the concept persists, with potentially significant consequences. In National Federation of Independent Business v. Sebelius, the 2012 Affordable Care Act case, for example, five Justices maintained that there is an implied limitation against regulating economic "inactivity." The justification offered for this is an abstract concept of federalism that is largely detached from the once powerful, but now defunct, principles of constitutional politics that sustained it.

Keywords: commerce clause, implied powers, enumeration, limited enumerated powers, reserved state powers, Tenth Amendment, McCulloch v. Maryland, Gibbons v. Ogden, Marshall Court, Taney Court, Necessary and Proper Clause, NFIB v. Sebelius


The U.S. Constitution – Lesson #3: Implied v. Expressed Powers

Before we go any further into the Constitution it is important that we draw a clear distinction between two different types of powers in the Constitution: Expressed powers and implied powers. I will be drawing upon these two terms a lot in the future of this blog so its best they be defined and appropriate examples given.

Expressed powers, sometimes called enumerated, are the powers expressly given to a government. The job of our Constitution is to enumerate those powers and also list out the powers denied to the government. The power to tax and spend is one of the most obvious and well known enumerated power of any government on the face of the earth.

The vast majority of the expressed powers of Congress can be found in Article I, Section 8. But there are more powers granted to Congress that you can find within the body of the Constitution and its amendments. Often times when an amendment is added there is a clause that states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article (Amendment 14).” This is just simply stating that Congress can write the laws to make sure this happens. It adds to their expressed powers. I will not go into detail right now all the expressed powers of Congress, the President or the Supreme Court now, but that will be a huge aspect of future lessons on our Constitution.

Implied powers related specifically to the Legislative Branch (law making, i.e Congress), though all branches of have some form of implied powers. The authorization for implied powers of Congress can be found in Article I, Section 8, Clause 18. It states:

To make all law which shall be necessary and proper to carrying into execution the foregoing powers, and all other powers vested in this Constitution in the government of the United State, or in any department or officer thereof.

Notice the language of this clause, it is very specific in how these implied power are to be enacted. The laws passed by Congress under this clause must have their authority from the Constitution itself. This is not the power to expand the power of Congress beyond what is in the Constitution. This is the power to create laws to help them carry out the powers in this Constitution. Here are a few examples.

Article I, Section 7 of the Constitution is the main part of the Constitution that deals with the legislative process of Congress. If you read it none of the detail of how a law is passed are outlined in the clauses. Only that both houses of Congress must concur with each other on any bill and that the President must sign said bill. There is nothing in there about committees, subcommittees, conference committees, limits on debate, how a law will be introduced, or any other details. Well those procedures were created out of the implied power of Congress. To carry out the power of passing bills into laws the Congress need to pass rules explaining how to pass a law with which both houses concur. This is also part of their procedural rules (Article I, Section 5, Clause 2) that they pass every two years.

Another big example I use most often with my students, is the postal powers given to Congress (Article I, Section 8, Clause 7). The text reads as follows: To establish Post Offices and Post Roads.” Congress and the government does over see the United States Postal Service, but its mostly left alone as a government corporation. Technically under the implied powers of Congress this also means that Congress has the authority to regulate companies like FedEx, UPS, DHL, and other similar companies. The reason being is that they carry post, or mail. One could also reasonable imply that since almost roads in the United States carry post they also have the power to regulate these as well. I will strech this example just a little bit further. Since mail is often times also carried on airplanes then they have the authority, granted by this the implied power clause, to regulate air traffic as well.

This is also where the power of the military draft comes from its an implied power of Congress to raise and maintain an Army and Navy.

I hope those examples are enough for you to understand the differences between the expressed and implied powers in our U.S. Constitution. These will be referenced a lot as we dive into the powers of the Constitution next week. If you have any questions do not hesitate to email or comment on this blog or on Facebook (it gets posted there as well).

One last thing before I dismiss class. I mentioned yesterday that I was thinking of moving my blog entirely to Facebook. Please send me any thoughts you may have on the subject.


Case law [ edit ]

Later, directly borrowing from Hamilton, Chief Justice John Marshall invoked the implied powers of government in the United States Supreme Court case, McCulloch v. Maryland. In 1816, the United States Congress passed legislation creating the Second Bank of the United States. The state of Maryland attempted to tax the bank. The state argued the United States Constitution did not explicitly grant Congress the power to establish banks. In 1819, the Court decided against the state of Maryland. Chief Justice Marshall argued that Congress had the right to establish the bank, as the Constitution grants to Congress certain implied powers beyond those explicitly stated.

In the case of the United States Government, implied powers are powers Congress exercises that the Constitution does not explicitly define, but are necessary and proper to execute the powers. The legitimacy of these Congressional powers is derived from the Taxing and Spending Clause, the Necessary and Proper Clause, and the Commerce Clause.

Implied powers are those that can reasonably be assumed to flow from express powers, Α] though not explicitly mentioned.


Watch the video: What are implied powers? American Government Review