Simone Lawson
The US Constitution grants Congress certain implied powers, which are those that can reasonably be assumed to flow from express powers, though not explicitly mentioned. The Framers of the Constitution understood that they needed to provide some flexibility in the document for representatives to govern for the common good. For example, Congress has the power to raise an army and navy, and thus it has an implied power to create an air force, even if the Framers did not envision humans fighting with airplanes and drones. One of the most famous instances of the usage of implied powers was during the McCulloch v. Maryland case in 1819, when Chief Justice John Marshall argued that Congress had the right to establish the Second Bank of the United States, as the Constitution grants Congress certain implied powers beyond those explicitly stated.
| Characteristics | Values |
|---|---|
| Implied powers are those that can reasonably be assumed to flow from express powers | The power to regulate firearms under the Commerce Clause |
| The implied powers doctrine is often controversial and hotly debated | The power to pass laws that the Constitution does not specifically grant it the power to pass, such as gun control |
| The Framers of the Constitution wanted to provide flexibility for representatives to govern for the common good | The power to create the First Bank of the United States in 1791 |
| The Framers also wanted a vigorous national legislature empowered to govern the country effectively | The power to create the Second Bank of the United States in 1816 |
| The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress the power to pass laws necessary for carrying into execution its other powers | The power to use a military draft to raise an army |
| Members of Congress have a duty to "refine and enlarge" the views of their constituents and to rule for the common good | The power to purchase the Louisiana Territory in 1803, which exceeded the authorized spending cap |
| Congress has implied powers to achieve its objective of making laws for the people | The power to create an air force, even though this was not envisioned by the Framers |
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What You'll Learn
The right to regulate firearms
The Second Amendment of the United States Constitution states:
> A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The interpretation of this amendment has been a highly debated topic, with some arguing that it grants individuals the constitutional right to possess firearms. This is known as the "individual right theory". Under this interpretation, legislative bodies are restricted from prohibiting firearm possession, or at the very least, the amendment renders prohibitory and restrictive regulation presumptively unconstitutional.
On the other hand, some scholars argue that the amendment's reference to "a well-regulated Militia" indicates that the Framers intended only to restrict Congress from legislating away a state's right to self-defence. This is known as the "collective rights theory", which asserts that citizens do not have an individual right to possess guns and that legislative bodies at the local, state, and federal levels possess the authority to regulate firearms without infringing on a constitutional right.
The United States Supreme Court has weighed in on this matter in several cases, including United States v. Miller in 1939, where the Court adopted a collective rights approach, determining that Congress could regulate a sawed-off shotgun under the National Firearms Act of 1934. The Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.
In more recent cases, such as McDonald v. City of Chicago in 2010, the Court strengthened Second Amendment protections by holding that the amendment applies to the states through the incorporation doctrine. However, the Court lacked a majority on which specific clause of the Fourteenth Amendment incorporates the right to keep and bear arms for self-defence.
While the interpretation of the Second Amendment continues to be debated, it is clear that the United States Constitution grants Congress certain implied powers beyond those explicitly stated. These implied powers are derived from the enumerated powers and allow Congress to pass laws that are necessary and proper for carrying out its duties. In the context of firearm regulation, Congress has the implied power to regulate firearms under the Commerce Clause, which grants Congress the right to regulate interstate commerce.
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The right to establish a bank
The Constitution of the United States grants Congress certain implied powers, which are those that can be reasonably assumed to flow from express powers, though not explicitly mentioned. The Framers of the Constitution understood that they needed to provide some flexibility in the document for representatives to govern for the common good. Thus, they granted Congress implied as well as explicit powers.
One of the implied powers of Congress is the right to establish a bank. This was demonstrated in 1791 when Congress created the First Bank of the United States. President George Washington asked Treasury Secretary Alexander Hamilton to defend the action over the objections of Thomas Jefferson, James Madison, and Attorney General Edmund Randolph. Hamilton argued that the sovereign duties of any government implied that it reserved the right to use whatever powers were necessary to carry out those duties. He further contended that the "general welfare" and the "necessary and proper" clauses of the Constitution gave the document the elasticity sought by its framers.
In 1816, Congress established the Second Bank of the United States to help control the amount of unregulated currency issued by state banks. Many states, including Maryland, questioned the constitutionality of the national bank. Maryland set a precedent by requiring taxes on all banks not chartered by the state. In 1818, the state approved legislation to impose taxes on the Second National Bank, which sparked a lawsuit when a Federal cashier at the Baltimore branch of the U.S. bank, James W. McCulloch, refused to pay the taxes imposed by the state.
In the landmark 1819 Supreme Court case McCulloch v. Maryland, Chief Justice John Marshall ruled that Congress had the right to establish a bank, as it had implied powers beyond those explicitly stated in the Constitution. Marshall's decision upheld the creation of the Second Bank of the United States and set a precedent for the interpretation of Congress's implied powers.
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The right to regulate trade
The US Constitution grants Congress explicit powers, but it also has implied powers that are not specifically defined but are inferred as necessary to execute the explicit powers. The Framers of the Constitution understood that they needed to provide some flexibility in the document for representatives to govern for the common good.
One of the implied powers of Congress is the right to regulate trade. This power can be inferred from the explicit power to regulate interstate commerce. The regulation of trade is essential for governing the country effectively and promoting the general welfare.
The power to regulate trade allows Congress to create laws and policies that influence the buying and selling of goods and services within the country. This includes setting standards and guidelines for businesses, such as labour and environmental regulations, and imposing tariffs or other trade restrictions to protect domestic industries.
For example, Congress may use this implied power to pass laws that address unfair trade practices, such as price fixing or anti-competitive behaviour, to ensure a free and fair market. They can also use this power to negotiate trade agreements with other countries, setting rules and standards for international trade.
While the right to regulate trade is an implied power, it is still subject to the principles of limited government and the protection of constitutional liberties. Congress must act within the boundaries of its enumerated powers and respect the rights of the states and the people.
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The right to raise an army
The US Constitution grants Congress certain implied powers that are not explicitly defined but are necessary and proper for executing the powers it does explicitly hold. One such implied power is the right to raise an army.
The Framers of the Constitution understood that they needed to provide some flexibility in the document for representatives to govern effectively for the common good. As such, they granted Congress implied as well as explicit powers. Article I, Section 8 of the Constitution grants Congress a specific set of powers known as "expressed" or "enumerated" powers. These include the right to lay and collect taxes, regulate interstate commerce, declare war, coin money, and establish a court system.
The Framers of the Constitution also included a Necessary and Proper Clause, also known as the "elastic clause," at the end of Article I, Section 8. This clause states that Congress has the power 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.
This clause further supports the argument for Congress's implied power to raise an army, as it grants Congress the authority to make laws necessary for executing its enumerated powers, such as the power to declare war.
It is important to note that congressional powers are restricted by the principle of limited government. The Tenth Amendment, the last amendment of the Bill of Rights, states that:
> powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This means that the expansion of implied powers may be construed as infringing upon state or individual rights.
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The right to create an air force
The US Constitution does not explicitly mention the Air Force, and it is not clear whether it is constitutional to create one. However, Congress has implied powers beyond those explicitly stated in the Constitution. These implied powers are drawn from the enumerated powers. For example, Congress has the power to raise an army and navy, and thus it has an implied power to create an air force. This is because the intent is to grant the government the ability to raise, support, and regulate a military.
The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress the power 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." This clause has been interpreted to allow Congress to establish an independent Air Force if needed.
Some people argue that the Air Force is constitutional as an extension of the Army or Navy. They claim that the division of the US military into separate branches is an administrative choice by Congress to better provide for the common defense. However, others argue that the Air Force should be considered a separate military department, and its creation by Congress could be seen as unconstitutional.
The constitutionality of the Air Force has never been seriously challenged in a US Court. It is important to note that the concept of "an air force" did not exist when the Constitution was written, and the Framers could not have envisioned humans fighting with airplanes and drones.
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Frequently asked questions
Implied powers are those that can be reasonably assumed to be included in the express powers, despite not being explicitly mentioned.
The US Constitution grants Congress certain implied powers beyond those explicitly stated. For example, Congress has the power to raise an army and navy, and thus it has an implied power to create an air force. The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers".
The Tenth Amendment states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people". The expansion of implied powers could therefore be seen as infringing upon state or individual rights.
The creation of the First Bank of the United States in 1791 was justified by Alexander Hamilton, who argued that the sovereign duties of any government imply the right to use whatever powers necessary to carry out those duties. In 1803, Thomas Jefferson agreed to purchase French territory in North America for $15 million, far exceeding his authorised budget of $10 million. It was unclear whether he had the legal authority to do so without the approval of Congress.
