Implied Powers: Examples From The Us Constitution

Implied powers are those that are not explicitly mentioned in the US Constitution but can reasonably be assumed to flow from express powers. In the context of federalism, they refer to powers that Congress possesses that are not explicitly enumerated in the Constitution. The implied powers of Congress are often controversial and hotly debated, as they can be seen as both a positive and negative aspect of the nation's governance. The Necessary and Proper Clause, also known as the Elastic Clause, grants Congress powers that are assumed to be necessary to implement the 27 powers named in Article I. The interpretation of what is considered necessary and proper is subjective and open to interpretation, leading to debates over the scope of Congress's implied powers. The Supreme Court has also addressed implied powers in cases involving the president's actions, such as in Youngstown Sheet & Tube Co. v. Sawyer, where the Court shut down Truman's argument for inherent power during wartime.

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The McCulloch vs. Maryland case

The case arose from a dispute between James McCulloch, the head cashier at the Baltimore branch of the Second Bank of the United States, and the state of Maryland. McCulloch refused to pay $15,000 in taxes, claiming that Maryland did not have the right to tax a federally chartered bank. Maryland leaders sued, and the state's Court of Appeals ruled in their favour. McCulloch then appealed to the Supreme Court, which ruled in favour of Congress.

Chief Justice John Marshall wrote that Congress had the right to establish a bank under the Constitution's Necessary and Proper Clause (also known as the Elastic Clause). This clause grants Congress powers that, while not specifically listed in the Constitution, are assumed to be necessary to implement the 27 powers named in Article I. Marshall argued that the Constitution grants Congress certain implied powers beyond those explicitly stated, and that these implied powers are necessary and proper for executing the powers explicitly enumerated in the Constitution.

The McCulloch decision settled that the scope of Congress's implied powers is very broad. It also established the supremacy of the American federal government over the states, thereby restricting the states' ability to interfere with federal institutions. This case was a seminal moment in federalism, shaping the balance between federal and state powers.

The Necessary and Proper Clause

This clause is significant because it gives Congress implied powers beyond those explicitly stated in the Constitution. These implied powers are those that can reasonably be assumed to flow from express powers, though not explicitly mentioned. In other words, it allows Congress to use all means "necessary and proper" to execute the powers granted to them by the Constitution.

The interpretation of what is considered "necessary and proper" is subjective and open to debate. This subjectivity has led to controversy, as it allows for the expansion of federal power without the formal amendment process. One example of this controversy is the debate over the Second Amendment right to bear arms. Some argue that the government's implied power to regulate firearms under the Commerce Clause is positive, while others see it as an infringement of civil liberties.

The Louisiana Purchase

Thomas Jefferson, who was very familiar with the French due to his time in Europe as an American envoy, sent James Monroe to join Robert Livingston in France to negotiate the purchase of New Orleans and West Florida for up to $10 million. However, an agreement was reached to purchase the entirety of continental French territory for $15 million, exceeding the authorised spending cap.

The use of implied powers to justify the Louisiana Purchase is consistent with the Necessary and Proper Clause, also known as the Elastic Clause, which grants Congress powers that are assumed to be necessary to implement the enumerated powers in Article I. This clause has been the subject of controversy, as it can be interpreted broadly to expand the government's power without the required amendment process. The Louisiana Purchase demonstrates how implied powers can be utilised to achieve significant territorial expansion, shaping the future of the nation.

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The creation of the IRS

The United States Constitution grants Congress a specific set of powers known as "expressed" or "enumerated" powers, which represent the basis of America's system of federalism. However, implied powers refer to those powers that Congress can exercise but are not directly outlined in the Constitution. These powers are assumed to be necessary to implement the expressed powers.

The power to collect taxes is expressly granted to Congress in Article 1, Section 8 of the Constitution. However, the creation of the IRS goes beyond the express power to collect taxes and can be seen as an implied power. This is because the IRS's role in collecting revenue involves regulating commerce and ensuring the general welfare, which are also broad powers granted to Congress. The establishment of the IRS can be justified as necessary and proper for carrying out Congress's enumerated powers, including the power to collect taxes, borrow money, regulate commerce, and provide for the general welfare of the nation.

The use of implied powers by Congress has been a controversial topic. Some view it as a positive expansion of federal power, while others see it as an overreach of government authority that sidesteps the constitutionally mandated legislative process. The interpretation of what is necessary and proper is subjective and open to debate, as seen in the historical examples of the creation of the First Bank of the United States and the McCulloch v. Maryland case, where the Supreme Court upheld Congress's implied power to establish a bank.

In summary, the creation of the IRS can be understood as an exercise of Congress's implied powers under the Necessary and Proper Clause (also known as the Elastic Clause). While the express power to collect taxes is stated in the Constitution, the establishment of the IRS goes beyond this and involves interpreting the scope of Congress's powers to regulate commerce and ensure the general welfare. The IRS's role in collecting revenue to fund the federal government is essential for carrying out Congress's enumerated powers.

Gun control laws

The US Constitution grants Congress a set of powers known as "expressed" or "enumerated" powers, which represent the basis of America's system of federalism. However, the Constitution also includes the "Necessary and Proper Clause" or "Elastic Clause", which grants Congress powers that are not specifically listed but are assumed to be necessary to implement the expressed powers. These are known as "implied powers".

One of the most controversial uses of implied powers by Congress has been in the area of gun control laws. Since 1927, Congress has passed laws limiting the sale and possession of firearms, citing its power to regulate interstate commerce under the "Commerce Clause" as justification. This has been a highly debated issue, as it appears to conflict with the Second Amendment, which ensures the right to "keep and bear arms".

The Second Amendment states that "the right of the people to keep and bear Arms shall not be infringed". There are differing interpretations of this amendment. Some argue that it creates an individual constitutional right to possess firearms, while others contend that it was intended to restrict Congress from legislating away a state's right to self-defense, and that citizens do not have an individual right to possess guns.

The US Supreme Court has interpreted the Second Amendment on five separate occasions, with nearly 40 lower court decisions also addressing the amendment. All of these decisions have held that the Second Amendment guarantees a state's right to maintain a militia, rather than an individual's right to own a gun. However, the Supreme Court has also struck down handgun bans as violative of the right to keep and bear arms.

In recent years, the Court has outlined that a government wishing to place restrictions on firearm ownership must "affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms". This includes objective gun control measures, such as background checks and mandatory training requirements, which are generally considered constitutional.

In summary, while the Second Amendment protects the right to keep and bear arms, the implied powers of Congress under the Commerce Clause allow for some regulation of the sale and ownership of firearms. The interpretation and application of these powers in relation to gun control laws have been a subject of ongoing debate and legal interpretation.

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