Omar Bennett
The United States Constitution grants the US government both expressed and implied powers to govern the nation. Implied powers are those that are not directly stated in the Constitution but are indirectly given based on expressed powers. They are open to interpretation and can be seen as a way to sidestep the legislative process, leading to debates over their expansion. Alexander Hamilton first articulated the concept, which was later recognised by the US Supreme Court in McCulloch v. Maryland (1819). The Court held that Congress had implied powers beyond those explicitly stated in the Constitution. These powers enable Congress to address unforeseeable situations and effectively govern the nation as it evolves.
| Characteristics | Values |
|---|---|
| Powers not explicitly mentioned in the Constitution | Military draft, creation of the IRS, executive agreements, expansion of foreign policy |
| Interpretative | Subject to interpretation, vague, open to interpretation |
| Necessary to execute expressed powers | Useful to carry out enumerated powers, convenient |
| Controversial | Expansion of federal power, overreach of power, infringement of civil liberties, infringement of state or individual rights |
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What You'll Learn
The McCulloch vs. Maryland case
The context of the case was as follows: in 1816, the Second Bank of the United States was established, with branches in several cities, including Baltimore. Two years later, in 1818, the Maryland General Assembly, the state legislature of Maryland, passed a law imposing an annual tax of $15,000 on any out-of-state banks operating within the state. This law specifically targeted the Bank of the United States as it was the only out-of-state bank operating in Maryland at the time. James W. McCulloch, the head cashier of the Baltimore branch of the Second Bank of the United States, refused to pay the tax, arguing that Maryland did not have the right to tax a federally-chartered bank.
The state of Maryland sued McCulloch, and the case initially went to the Maryland Court of Appeals, which ruled in favour of the state. McCulloch then appealed to the US Supreme Court, where the case became known as McCulloch vs. Maryland. The Supreme Court ruled unanimously in favour of McCulloch and Congress, establishing two key principles. Firstly, the Court affirmed that Congress had the implied power under the Necessary and Proper Clause of the US Constitution to establish a national bank. This clause gives Congress the authority to pass laws "necessary and proper" to carry out its enumerated powers. Secondly, the Court held that individual states could not tax a federally-chartered bank as taxation implied a power to destroy, and thus interfered with federal powers, violating the Supremacy Clause.
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The president's power to make executive agreements
The US Constitution is a document of limited powers, with most of the powers it grants to Congress being listed in Article I, Section 8. However, the concept of implied powers is not new, and the framers knew that the 27 expressed powers listed in Article I, Section 8 would not be adequate to address all the issues Congress would need to address over the years.
While the president's power to make executive agreements is not explicitly defined in the Constitution, it can be seen as an inherent aspect of presidential power. This power has been used by presidents throughout history, including Franklin Roosevelt, who issued Executive Order 9066 during World War II to establish Japanese-American internment camps.
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The Military Draft
The constitutionality of the Selective Draft Law was upheld by the Supreme Court in 1918, in a series of cases known as the Selective Draft Law Cases. The Court rejected arguments that the law violated the First and Thirteenth Amendments, establishing that compelled military service did not conflict with constitutional guarantees of individual liberty and was not considered involuntary servitude. This decision affirmed the government's implied power to implement a military draft.
The use of the military draft has a long history in the United States, dating back to the Revolutionary War, when several state constitutions sanctioned compulsory military service. During the War of 1812, James Monroe, the Secretary of War, proposed conscription for the army, but it was not enacted due to opposition and the war's conclusion. In 1863, a compulsory draft law was adopted without legal challenge.
The Selective Service Act of 1917 was challenged on multiple grounds, including potential violations of the First and Thirteenth Amendments, similar to the earlier arguments against the Selective Draft Law. However, the Supreme Court upheld the Act, dismissing concerns about potential violations. This further reinforced the implied power of the federal government to implement a military draft.
The debate around implied powers, including the military draft, centres on the balance of power between the federal government and state governments. The Tenth Amendment reserves powers not delegated to the federal government by the Constitution for the states or the people. Some may view the expansion of implied powers as an infringement upon state or individual rights, while others see it as a necessary extension of federal power.
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The power 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 subject of considerable debate, with some arguing that it creates an individual constitutional right to possess firearms, while others contend that the Framers intended only to restrict Congress from legislating away a state's right to self-defence. The US Supreme Court has weighed in on the matter, adopting a collective rights approach in United States v. Miller (1939), where it determined that Congress could regulate certain firearms under the National Firearms Act of 1934.
The regulation of firearms is a complex issue that implicates the Second Amendment, state laws, and the government's implied powers. While some argue that the Second Amendment protects an individual's right to bear arms, others contend that legislative bodies have the authority to regulate firearms without implicating a constitutional right. The Supreme Court has suggested that the Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession. Additionally, certain regulations, such as those prohibiting weapons on government property, requiring permits for concealed weapons, and banning juvenile delinquent handgun possession, have been upheld by courts.
In conclusion, the power to regulate firearms in the United States is a multifaceted issue that involves the interpretation of the Second Amendment, the consideration of implied powers, and the balancing of individual rights and public safety. The ongoing debate surrounding this issue reflects the complexity and importance of finding a balance between constitutional rights and the need for effective firearm regulation.
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The Tenth Amendment
> "The 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 amendment was designed to ensure that the federal government's powers were limited in scope, preventing potential infringements on the liberties of the people. It also sought to address the concerns of some states, which wanted reassurance that their ratification of the Constitution would soon be followed by the addition of a bill of rights.
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Frequently asked questions
Implied powers are powers that, although not directly stated in the Constitution, are indirectly given based on expressed powers. They are powers that can reasonably be assumed to flow from express powers, though not explicitly mentioned.
Some examples of implied powers include the creation of the Internal Revenue Service (IRS) and the ability to use a military draft to raise an army. The president's power to make executive agreements is also an example of an implied power.
In 1819, the Supreme Court case McCulloch v. Maryland confirmed Congress's implied power to establish a bank, even though this power is not explicitly stated in the Constitution. This case set a precedent for interpreting the scope of Congress's implied powers.
