Isabella Carter
The US Constitution grants Congress a specific set of powers known as expressed or enumerated powers, which form the basis of America's system of federalism. However, the concept of implied powers has also played a significant role in US governance. Implied powers are those that are not directly stated in the Constitution but are derived from expressed powers. Article I, Section 8, Clause 18, also known as the Necessary and Proper Clause or the Elastic Clause, grants Congress the power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. This clause has been interpreted to give Congress broad implied powers, allowing it to pass laws that are not explicitly granted to it by the Constitution but are deemed necessary and proper for executing its enumerated powers. The question of Congress's implied powers first arose during President George Washington's administration regarding the establishment of a national bank, and it has been a subject of debate ever since.
| Characteristics | Values |
|---|---|
| Basis in the Constitution | Article I, Section 8, Clause 18 |
| Other names | Elastic Clause, Necessary and Proper Clause |
| Nature of powers | Powers that are not directly stated in the Constitution but are indirectly given based on expressed powers |
| Scope | Very broad |
| Controversy | High |
| Examples of use | Gun control laws, federal minimum wage laws |
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What You'll Learn
The McCulloch vs. Maryland case
The Second Bank of the United States was created by the US Congress in 1816 and opened a branch in Baltimore, Maryland, in 1817. The following year, the Maryland legislature voted to impose a tax on all banks within the state that were not chartered by the legislature. The Second Bank of the United States refused to pay the tax, resulting in a lawsuit against its head, James William McCulloch. The state argued that the bank was unconstitutional because the Constitution did not explicitly provide for the federal government to charter a bank.
The case was appealed to the Maryland Court of Appeals, where the state of Maryland argued that "the Constitution is silent on the subject of banks." The Supreme Court, in a unanimous decision, ruled in favour of McCulloch, striking down the tax as unconstitutional attempt by a state to interfere with a federal institution, in violation of the Supremacy Clause. Chief Justice John Marshall, delivering the opinion of the Court, held that the Constitution grants Congress certain implied powers beyond those explicitly stated. Marshall argued that the "'Necessary and Proper' Clause of the Constitution gives the federal government implied powers necessary and proper for the exercise of the powers enumerated in the Constitution. He redefined "necessary" as something closer to "appropriate and legitimate," covering all methods for furthering the objectives covered by the enumerated powers.
The McCulloch decision is significant because it effectively 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. The case was a seminal moment in federalism, shaping the balance between federal and state powers. The decision has been influential not only in the US but also in other nations with similar legal systems, such as Australia, where it was cited in the landmark case of D'Emden v Pedder (1904).
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The Necessary and Proper Clause
The clause recognises that Congress has implied powers in addition to its enumerated powers. These implied powers are not specifically listed in the Constitution but are assumed to be necessary to implement the 27 powers named in Article I. The determination of what is "necessary and proper" is subjective, and the implied powers of Congress have been a source of controversy since the early days of the US government.
In 1819, the Supreme Court's landmark McCulloch v. Maryland case interpreted the Necessary and Proper Clause, siding with Hamilton and giving Congress broad authority to determine what is "necessary" for implementing federal powers. The Court held that Congress has the implied power to establish a bank, as it is a suitable instrument to aid in Congress's enumerated power to tax and spend. This decision settled that the scope of Congress's implied powers is very broad, and it is considered one of the most important in US history.
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The Elastic Clause
The United States Constitution is unique in that it is a document of limited powers. In theory, the federal government only possesses powers specifically granted to it by the Constitution. However, the framers of the Constitution knew that the 27 expressed powers listed in Article I, Section 8 would never be enough to address all the unforeseeable situations and issues that Congress would need to address over time.
To address this, the framers included the "Necessary and Proper Clause", also known as the "Elastic Clause", which 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. This clause gives the Constitution the elasticity sought by its framers.
The Necessary and Proper Clause was included in the Constitution in response to the shortcomings of the Articles of Confederation, which had limited federal power to only those powers expressly delegated to the United States. The framers wanted to ensure that Congress had the broadest possible lawmaking powers, so they included the Necessary and Proper Clause as a safeguard to give Congress the lawmaking leeway it would need.
The first official acknowledgment of the existence and validity of Congress's implied powers came in a landmark decision of the Supreme Court in 1819 in McCulloch v. Maryland. Chief Justice John Marshall, closely following an argument made by Alexander Hamilton, held that the Constitution grants Congress certain implied powers beyond those explicitly stated. Marshall argued that Congress had the right to establish a bank, as the Constitution grants Congress the power to make all laws that are "necessary and proper" for carrying into execution the powers vested in the government.
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The implied power to establish a national bank
The United States Constitution is unique in that it is a government of limited powers. In theory, it only possesses powers specifically granted to it by the Constitution, most of which are listed, or "enumerated", in Article I, Section 8. However, the eighteenth and final power listed in Article I, Section 8, is the power of Congress to "make all Laws which shall be necessary and proper" to the execution of its specified powers. This is known as the "Necessary and Proper Clause" or the "Elastic Clause". This clause grants Congress implied powers, which are powers that are not specifically listed in the Constitution but are assumed to be necessary to implement the 27 powers named in Article I.
Convinced by Hamilton's argument, President Washington signed the national bank bill into law, making it a federal statute. However, strong public controversy about the constitutionality and desirability of the First Bank of the United States continued, and Congress decided not to renew the bank's charter after 20 years. The question of the power of Congress to charter a bank and, more generally, the scope of Congress's implied powers, came before the Supreme Court in 1819 in the famous case of McCulloch v. Maryland. Chief Justice John Marshall, a member of the Federalist Party and a firm believer in a strong national government, closely followed Hamilton's argument in his opinion for the Court. Marshall held that the Constitution's grant of enumerated powers to Congress carried with it a grant of implied powers, and that Congress had the right to establish a national bank because it was "'necessary and proper' for the United States to function properly. Marshall's decision effectively settled that the scope of Congress's implied powers is very broad.
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The implied power to regulate gun control
The United States Constitution grants Congress a specific set of powers known as "expressed" or "enumerated" powers, which form the basis of America's system of federalism. However, the framers of the Constitution recognized that these enumerated powers would not be sufficient to address all the issues and situations that Congress would need to address over time. As a result, they included the "Necessary and Proper" clause, also known as the "Elastic Clause", which grants Congress implied powers that are assumed to be necessary to implement the enumerated powers.
One of the most controversial applications of implied powers is in the area of gun control. Since 1927, Congress has passed laws limiting the sale and possession of firearms, citing its power to regulate interstate commerce under the "Commerce Clause" (Article I, Section 8, Clause 3) as justification. While these laws may appear to conflict with the Second Amendment's right to "keep and bear arms," Congress has maintained that regulating the gun trade across state lines falls within its purview.
The "Necessary and Proper" clause has been a source of ongoing controversy, as the determination of what is "`necessary and proper`" is inherently subjective. This subjectivity has led to debates about the scope of Congress's implied powers and the balance of power between the federal and state governments.
The power to regulate firearms is shared between the federal government and the states. The federal government can exercise its "commerce power" and "taxing power" to regulate channels of interstate commerce, objects moving in interstate commerce, and commercial activities substantially related to interstate commerce. On the other hand, state and local governments have the "police power" to regulate the purchase, possession, transfer, and use of firearms within their jurisdictions.
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Frequently asked questions
Implied powers are powers that are assumed by the United States government that are not explicitly stated in the Constitution. They are indirectly given based on expressed powers.
Expressed powers are directly given to the government and are stated in the Constitution.
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.
In 1791, Congress created the First Bank of the United States based on its implied powers.
Other examples of implied powers include the creation of the IRS, the passing of the Affordable Care Act, and the establishment of gun control laws.
