Malcolm Rivera
The United States Constitution grants Congress a specific set of powers known as expressed or enumerated powers. However, the Framers of the Constitution understood that they needed to provide some flexibility, so they also granted Congress implied powers, which are those that are not explicitly stated in the Constitution but are necessary to carry out its responsibilities. This concept is reflected in the Necessary and Proper Clause or Elastic Clause of the Constitution, which allows Congress 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 grants Congress the ability to adapt to changing times and situations by using its power to make new laws, as long as they are within a reasonable understanding of its constitutionally enumerated powers.
| Characteristics | Values |
|---|---|
| Basis | America's system of federalism |
| Type of powers | Expressed/ Enumerated/ Delegated |
| Number of Expressed Powers | 27 |
| Example of Expressed Power | To levy and collect taxes |
| Implied Power | The power to create an air force |
| Reasoning | To carry out sovereign duties of any government |
| Clause | Necessary and Proper Clause/ Elastic Clause |
| Clause Purpose | To ensure Congress the lawmaking leeway |
| Clause Location | Article I, Section 8 |
| Clause Text | Make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers |
| Clause Ruling | McCulloch v. Maryland |
| Clause Ruling Year | 1819 |
| Clause Ruling Judge | Chief Justice John Marshall |
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What You'll Learn
The creation of a national bank
Hamilton's interpretation of the "necessary and proper" clause was broad and loose. He believed that it was necessary and proper for Congress to pass the national bank bill to effectively carry out explicitly stated powers, such as coining and regulating the value of money, borrowing money, levying taxes, and regulating interstate commerce. According to Hamilton, the creation of a national bank would enable the government to carry out these powers more efficiently.
The establishment of the First Bank of the United States faced strong opposition, including from Thomas Jefferson, James Madison, and Attorney General Edmund Randolph. They argued that the Constitution did not explicitly grant Congress the power to establish a national bank. However, President George Washington sided with Hamilton and signed the national bank bill into law in 1791, making it a federal statute.
The constitutionality of the national bank was further upheld in the landmark McCulloch v. Maryland case. Chief Justice John Marshall affirmed the doctrine of "implied powers", stating that Congress had powers not expressly listed in Article I of the Constitution but were necessary and proper to carry out the "enumerated" powers. Marshall's interpretation of "necessary" aligned with Hamilton's, meaning useful and appropriate rather than absolutely essential. The McCulloch v. Maryland case established two enduring constitutional principles: the implied powers doctrine and the prohibition of state governments from obstructing federal operations.
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Establishing national education standards
The US Constitution does not explicitly mention education, and the 10th Amendment reserves the power to govern education standards to the states, allowing them to set their policies and regulations. However, the federal government has played a significant role in establishing national educational standards and legislation, providing funding, and ensuring that all students have access to quality education.
The federal government's role in education has evolved over time. Early in the nation's history, the 10th Amendment was passed, making education a function of the states. The federal government did not issue any educational policy until the 1960s, and its involvement in K–12 education was minimal. The Elementary and Secondary Education Act (ESEA) of 1965 provided federal grants to enhance the quality of elementary and secondary education and address equal access to education. The National Defense Education Act was the first education legislation enacted by Congress in 1958.
In 2001, the Bush administration passed the No Child Left Behind Act, which required states to adopt more rigorous educational standards and administer standardized tests to measure student progress. This marked a new level of federal oversight in education. The Obama administration later introduced the Common Core State Standards Initiative, which aimed to create consistent, high-quality educational standards across the country. These standards have faced criticism and controversy but continue to be used in many states.
The federal government uses a complex system of funding mechanisms, policy directives, and soft power to shape what, how, and where students learn. While the Department of Education does not directly oversee the nation's public schools, it provides financial support, contributes to education research, and makes policy recommendations. Federal agencies such as the Department of Education and the National Science Foundation recommend teaching strategies to the states. The federal government also oversees educational emergencies and offers financial assistance to school districts.
The implied powers of Congress, derived from the "Necessary and Proper Clause," allow it to pass laws not specifically enumerated in the Constitution but necessary to carry out its duties. The establishment of national education standards can be seen as an implied power of Congress to ensure equal access to quality education and improve the education system. However, some may view it as an overreach of federal power and an infringement on state autonomy.
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Raising an army
The US Constitution grants Congress a specific set of powers known as "expressed" or "enumerated" powers, which represent the basis of America's system of federalism. These powers are outlined in Article I, Section 8 of the Constitution. One of these enumerated powers is the power to "raise and support Armies". This power is derived from the understanding that the English King had the authority to initiate war and raise and maintain armies and navies.
The Framers of the Constitution vested the power to raise armies in Congress to ensure that the legislature had checks on the president's ability to wage war as commander-in-chief of the military. By granting Congress the power to raise and fund armies, the Framers intended to prevent the president from having excessive control over the military. This power of Congress serves as a check on the president's war powers.
Throughout history, there have been conflicts between the legislative and executive branches regarding their respective powers. One notable example is the Supreme Court case, United States v. O'Brien, which upheld the constitutional validity of the Selective Service Act of 1917. The Court recognized Congress's "broad constitutional power" to raise and regulate armies and navies, specifically noting that the conscription act was passed pursuant to the grant of authority in clauses 12–14.
Additionally, Congress has the power to make rules for the government and regulation of the armed forces, which includes establishing a system of criminal law binding on all servicemen with its own courts, procedures, and appeals processes. Congress also has the duty to fund the military, providing a check on the president's ability to conduct military operations. This funding is typically approved as part of the annual military budget for the Department of Defense, which the president can veto.
The implied powers of Congress, while controversial, are justified by the Elastic Clause or "Necessary and Proper" Clause, which grants Congress the power to pass laws necessary and proper for carrying into execution its enumerated powers. The concept of implied powers recognizes that the expressed powers listed in Article I, Section 8 may not be adequate for all situations, and thus grants Congress broader lawmaking powers.
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Declaring war
The US Constitution grants Congress the power to declare war. This is outlined in Article I, Section 8, Clause 11 of the US Constitution, which is also referred to as the Declare War Clause.
The Clause states that Congress has the power to:
> "...declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water..."
The Necessary and Proper Clause, also in Article I, Section 8, Clause 18, permits Congress to make laws necessary and proper for carrying into execution its powers, including the President's war power. This clause has been interpreted to mean that the federal government has the power to declare war, even if it is not explicitly mentioned in the Constitution.
Congress has declared war on 11 occasions, including the War of 1812 with Great Britain and World War II. However, Congress has not declared war since World War II, instead authorising the use of military force and shaping US military policy through appropriations and oversight.
While the Declare War Clause limits the President's power to initiate the use of military force, there is debate over how this limit is derived from the Constitution's text. The President has engaged in military operations without express Congressional consent, including the Korean War, the Vietnam War, and the Afghanistan War of 2001. These operations are, therefore, not considered official wars by the United States.
Additionally, there is controversy over whether using force against non-state actors, such as terrorist organisations, falls under the Declare War Clause. Following the September 11 terrorist attacks, Congress passed the Authorization for Use of Military Force (AUMF), granting the President the authority to use necessary force against those responsible.
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Regulating commerce
The Commerce Clause, outlined in Article I, Section 8, Clause 3 of the U.S. Constitution, grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". This clause is an example of Congress acting under its implied powers, as it does not specifically define the word "commerce", leaving it open to interpretation and ongoing debate.
The interpretation of the Commerce Clause has evolved over time, with the Supreme Court playing a significant role in shaping its meaning. Initially, the Court experimented with the idea that the clause did not empower Congress to pass laws that impeded an individual's right to enter into a business contract. However, in 1937, with the NLRB v. Jones & Laughlin Steel Corp case, the Court began to recognise broader grounds for the use of the Commerce Clause, stating that an activity was considered commerce if it had a "substantial economic effect" on interstate commerce. This marked the Court's newfound willingness to interpret the clause broadly.
The Commerce Clause has been used by Congress to justify exercising legislative power over the activities of states and their citizens, leading to controversy regarding the balance of power between the federal government and the states. This clause has been interpreted to cover not only economic activities but also non-economic activities that substantially affect interstate commerce. Federal agencies created by Congress enforce federal regulations that govern interstate commerce.
The interpretation of the term "commerce" has been a subject of debate, with some arguing for a limited interpretation, confining it to trade, exchange, or transportation, while others advocate for a broader interpretation to include commercial and social intercourse between citizens of different states. The Supreme Court has also weighed in on this debate, holding that "commerce" includes a wide range of activities, such as the sale, trade, exchange, and transportation of goods and people, distinct from the production of those goods.
In summary, the Commerce Clause is an essential power granted to Congress, allowing it to regulate the economy and protect the interests of Americans. While the exact scope of "commerce" remains open to interpretation, the clause has been used to address issues such as trade barriers, the creation of a unified economic front, and the regulation of various economic activities.
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Frequently asked questions
Implied powers in the US Constitution refer to powers that are not explicitly stated but are necessary to carry out the responsibilities of the legislative branch.
The creation of a set of national standards for public schools is an example of an implied power. While education is not specifically mentioned in the Constitution, Congress has the authority to establish and regulate national education standards through its implied powers.
The concept of implied powers was first introduced by Alexander Hamilton in 1791 when defending the creation of the First Bank of the United States. Hamilton argued that the general welfare and necessary and proper clauses of the Constitution allowed for implied powers.
The legal basis for implied powers is found in Article I, Section 8, Clause 18, also known as the Necessary and Proper Clause or Elastic Clause. This clause grants Congress the power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.
