Malcolm Rivera
The concept of implied powers in the US Constitution is derived from the Elastic Clause or the Necessary and Proper Clause in Article I, Section 8, which grants Congress the power to pass laws deemed necessary and proper for executing its enumerated powers. These implied powers are not explicitly stated in the Constitution but are assumed to be necessary for the government to effectively govern and adapt to evolving circumstances. The scope of these powers has been debated, with some viewing them as a positive expansion of federal power, while others argue they can be used to justify overreach and infringe on state or individual rights. The Supreme Court has played a significant role in interpreting and applying implied powers, with cases like McCulloch v. Maryland and Youngstown Sheet & Tube Co. v. Sawyer shaping the understanding of this constitutional concept.
| Characteristics | Values |
|---|---|
| Source of implied powers | Constitution’s “Elastic Clause,” or Article I, Section 8 of the Constitution |
| Implied powers refer to | Powers assumed by the US government that are not explicitly stated in the Constitution |
| Implied powers can be used to | Pass laws that are considered "necessary and proper" for effectively exercising "expressed" or "enumerated" powers |
| Implied powers can be interpreted as | Positive, enabling the expansion of federal power |
| Negative, enabling an overreach of federal power and an infringement of state or individual rights | |
| Implied powers have been used by | Congress, to create the First Bank of the United States in 1791, and the Second Bank of the United States in 1816 |
| The President, to make executive agreements, issue executive orders, and expand foreign policy | |
| The Supreme Court, to interpret and define the scope of implied powers |
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What You'll Learn
The McCulloch decision
The dispute in McCulloch involved the legality of the national bank and a tax that the state of Maryland imposed on it. The Second Bank of the United States refused to comply with the law, resulting in a lawsuit against its head, James William McCulloch. The state successfully argued on appeal to the state appellate court that the Second Bank was unconstitutional because the Constitution did not provide a textual commitment for the federal government to charter a bank.
In the Court's majority opinion, Chief Justice John Marshall affirmed the doctrine of "implied powers", granting Congress powers not expressly listed in Article I of the Constitution but "necessary and proper" to carry out those "enumerated" powers. Marshall observed that the Second Bank was no different from the First Bank of the United States, whose constitutionality had not been challenged. He held that the Constitution's grant of enumerated powers to Congress carried with it a grant of the means of making their exercise effective. The Necessary and Proper Clause, according to Marshall, did not limit the implied powers to those absolutely necessary for the execution of the enumerated powers; it was enough that the means chosen by Congress were convenient and useful.
The Court's ruling established two important principles in constitutional law. Firstly, the Constitution grants Congress implied powers to implement the express powers to create a functional national government. Secondly, state action may not impede valid constitutional exercises of power by the federal government. The decision has been influential in nations with similar legal systems, such as Australia, where it was cited in the first substantial constitutional case presented before the High Court of Australia in 1904.
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The Necessary and Proper Clause
> "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, or in any Department or Officer thereof."
This clause is the source of implied powers under the Constitution, which are powers assumed by the US government that are not explicitly stated in the document. The Necessary and Proper Clause has been interpreted as giving Congress implied powers in addition to its enumerated powers. This interpretation was confirmed by the landmark Supreme Court case McCulloch v. Maryland in 1819, which ruled that Congress had an implied power to establish a bank, as a bank would aid in Congress's enumerated power to tax and spend.
The McCulloch decision is considered one of the most important in US history as it effectively settled that the scope of Congress's implied powers is very broad. Combined with the broad nature of some of Congress's enumerated powers, such as the power to tax and regulate interstate commerce, there is very little that is beyond the power of the national government to regulate.
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The Elastic Clause
One of the earliest and most significant examples of the Elastic Clause in action was during the creation of the First Bank of the United States in 1791. Congress established this bank based on its implied powers, and Alexander Hamilton defended this action by interpreting the Constitution as authorising Congress to act for the general welfare of the nation. This interpretation was challenged by Thomas Jefferson, James Madison, and Attorney General Edmund Randolph.
The scope of Congress's implied powers was further clarified in the famous 1819 Supreme Court case McCulloch v. Maryland. Chief Justice John Marshall, a member of the Federalist Party, affirmed that Congress had implied powers beyond those explicitly stated in the Constitution. He argued that the grant of enumerated powers to Congress included the means to make their exercise effective, and the Necessary and Proper Clause did not limit these powers only to those absolutely necessary for executing the enumerated powers. Instead, it allowed Congress to choose means that were convenient or useful.
The McCulloch decision established a broad interpretation of Congress's implied powers, and combined with the broad nature of certain enumerated powers, it effectively gave the national government significant regulatory power. This decision and the Elastic Clause have had a significant impact on the US government's authority and have been central to debates about federal power and states' rights.
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The Tenth Amendment
The question of implied powers has been a significant issue in the United States since its early days. One notable example is the creation of the First Bank of the United States in 1791, which was based on Congress's implied powers. The Supreme Court confirmed Congress's power to create a national bank in the McCulloch vs. Maryland case in 1819, despite the fact that this power is not directly stated in the Constitution.
Another instance of the usage of implied powers was during the Louisiana Purchase in 1803, where James Monroe was sent by Thomas Jefferson to negotiate the purchase of French territory in North America. While the purchase was ultimately popular, it was unclear whether Jefferson had the legal authority to negotiate the price of the territory without the approval of Congress.
The implied powers of the president have also been a subject of debate and interpretation by the Supreme Court. While the Constitution does not explicitly mention implied presidential powers, the Supreme Court has ruled on cases where the president has acted within what they believed were their "implied powers". The leading case on this topic is Youngstown Sheet & Tube Co. v. Sawyer (1952).
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Implied powers of the president
The United States Constitution does not explicitly mention implied powers of the president. However, the Supreme Court has ruled on cases where the president has acted within their "implied powers". The Supreme Court has interpreted Article II, Section 2, Clause 3, as the basis for the president's implied powers.
The president's implied powers are derived from the express powers granted by the Constitution. The express powers are broad and enable the president to take actions that are authorized under them. The scope of the president's implied powers is determined by the judiciary, and the Supreme Court has established a framework to define them.
The leading case on the president's implied powers is Youngstown Sheet & Tube Co. v. Sawyer (1952). In this case, the Supreme Court shut down Truman's argument that he had the inherent power to seize steel mills during the Korean War. The Court held that neither the Constitution's grant of executive power nor the Commander in Chief Clause authorized the president to do so without congressional authorization.
Justices Robert H. Jackson and Felix Frankfurter agreed that Truman could not seize the steel mills, but their concurring opinions created bases for future judicial implications of presidential power.
The president's implied powers include the power to make executive agreements, similar to formal treaties with other nations, but without requiring Senate approval. Franklin D. Roosevelt used his implied powers during World War II, such as issuing Executive Order 9066 to establish Japanese-American internment camps. The president can also expand on foreign policy, such as implementing the policy of containment during the Cold War.
The president also has a range of express powers granted by the Constitution and Acts of Congress, as well as soft power attached to the presidency. These express powers include the power to sign or veto legislation, command the armed forces, ask for the written opinion of their Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors. The president also has the power to appoint and remove executive officers, appoint their staff of aides, advisers, and assistants, and make treaties with the advice and consent of Congress.
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Frequently asked questions
Implied powers are those powers assumed by the United States government that are not explicitly stated in the Constitution. They are considered "necessary and proper" to carry out the powers that are specifically mentioned in the Constitution.
Implied powers come from the Constitution's "Elastic Clause" or "Necessary and Proper Clause". This grants Congress the power to pass laws considered "necessary and proper" for effectively exercising its "enumerated" powers.
Yes, the McCulloch v. Maryland case in 1819 is a famous example. The Supreme Court upheld Congress's power to create a national bank, despite this power not being explicitly stated in the Constitution.
The broad nature of implied powers means they can be seen as a way for the federal government to sidestep the legislative process and overreach its power. There is also the concern that implied powers infringe upon state or individual rights.
Yes, the President also has implied powers. For example, the power to make executive agreements, which do not require Senate approval. The Supreme Court has ruled on cases where the President has acted within their implied powers, but it is the judiciary that determines whether the President has the implied power to act.
