Malcolm Rivera
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. Article I, Section 8 of the Constitution grants Congress a specific set of powers known as expressed or enumerated powers. However, the final enumerated power in Article I, Section 8, Clause 18, also known as the Necessary and Proper Clause or 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 grant Congress implied powers beyond those explicitly stated, allowing them to pass laws that may not seem to fall within their constitutional powers. The concept of implied powers has been a source of debate and controversy, with some arguing for a limited interpretation to prevent the expansion of federal power.
| Characteristics | Values |
|---|---|
| Section | Article I, Section 8 |
| Clause | Clause 18 |
| Powers | 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, or in any Department or Officer thereof |
| Other names | Necessary and Proper Clause, Elastic Clause, Sweeping Clause |
| Basis | Powers that are not directly stated in the Constitution, but are indirectly given based on expressed powers |
| Examples | Creation of the First Bank of the United States, creation of the Second Bank of the United States, creation of the IRS, establishment of a national healthcare system |
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What You'll Learn
The McCulloch vs. Maryland case
The case centres around the creation of the Second Bank of the United States in 1816, which had branches in several cities, including Baltimore. In 1818, Maryland's legislature passed a bill imposing taxes on out-of-state banks operating within the state. This specifically targeted the Bank of the United States, as it was the only such bank operating in Maryland. James W. McCulloch, the head cashier at the Baltimore branch, refused to pay taxes, arguing that Maryland did not have the right to tax a federally chartered bank. Maryland sued, and the state's courts ruled in their favour. McCulloch's lawyers then appealed the case to the Supreme Court, which ruled in favour of Congress.
Chief Justice John Marshall wrote the opinion for the Court, upholding the creation of the Second Bank of the United States and citing Congress's implied powers under the Necessary and Proper Clause (also known as the Elastic Clause). Marshall argued that Congress had the right to establish the bank, as the Constitution grants Congress certain implied powers beyond those explicitly stated. He stated that Congress was authorised to pass laws "necessary and proper" to carry out its duties. Marshall's opinion closely followed an argument made by Alexander Hamilton in 1791 to President George Washington, defending the creation of the First Bank of the United States. Hamilton had argued that the general welfare and necessary and proper clauses of the Constitution gave it the elasticity sought by its framers.
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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 significant because it gives Congress implied powers in addition to its enumerated powers. These implied powers are those that are not explicitly stated in the Constitution but are assumed to be necessary to implement the 27 powers named in Article I, Section 8.
The interpretation of the Necessary and Proper Clause has been a contentious issue between political parties for several decades. One of the earliest examples of its application was in 1791, when Alexander Hamilton used it to defend the creation of the First Bank of the United States. Hamilton argued that the bank was a reasonable means of carrying out powers related to taxation and borrowing funds, while James Madison and others argued that Congress lacked the constitutional authority to charter a bank.
The landmark Supreme Court case McCulloch v. Maryland in 1819 further solidified the interpretation of the Necessary and Proper Clause. In this case, the Court ruled that Congress had the implied power to establish a bank, as it was a suitable instrument to aid in Congress's enumerated power to tax and spend. Chief Justice John Marshall's opinion in this case closely followed Hamilton's argument, stating that the Necessary and Proper Clause did not limit implied powers to those absolutely necessary for executing enumerated powers, but rather to any means chosen by Congress that was convenient or useful.
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Implied powers and the First Bank of the United States
The United States Constitution is a document that grants the federal government a set of powers, most of which are listed in Article I, Section 8. However, the Constitution also grants Congress certain implied powers that are not explicitly stated but are assumed to be necessary for implementing the expressed powers.
The concept of implied powers came into play during the establishment of the First Bank of the United States in 1791. The creation of the bank was controversial, with some arguing that it was unconstitutional. Secretary of State Thomas Jefferson and Attorney General Edmund Randolph opposed the establishment, stating that additional congressional power should not be implied unless it was absolutely necessary. They advised President George Washington that the law chartering the bank was unconstitutional.
On the other hand, Alexander Hamilton, the first Secretary of the Treasury, defended the creation of the bank. He argued that the Constitution's “general welfare” and “necessary and proper” clauses gave it elasticity, allowing Congress to adopt any means useful to carrying out the enumerated powers. Hamilton's argument persuaded President Washington, who signed the bill into law on February 25, 1791.
The controversy over the First Bank of the United States set a precedent for interpreting the Constitution's implied powers. The Supreme Court further clarified the concept of implied powers in the McCulloch v. Maryland case in 1819. Chief Justice John Marshall, following Hamilton's argument, held that the Constitution's grant of enumerated powers to Congress included the means to make their exercise effective. He interpreted the Necessary and Proper Clause broadly, stating that it was enough for Congress to choose means that were convenient or useful.
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The implied power to tax and spend
The United States Constitution, unlike most other national constitutions, is a document of limited powers. It grants Congress a specific set of powers known as "expressed" or "enumerated" powers, which are listed in Article I, Section 8. However, the Constitution also grants Congress certain implied powers beyond those explicitly stated. These implied powers are derived from the Necessary and Proper Clause (also known as the Elastic Clause) in Article I, Section 8, Clause 18, which states:
> "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, or in any Department or Officer thereof."
This clause grants Congress the authority to make laws that are necessary and proper for executing the powers specifically enumerated in the Constitution. The interpretation of this clause has been a subject of debate, with some arguing that it should be limited to powers that are absolutely necessary for executing the enumerated powers, while others, like Hamilton, argue for a broader interpretation that allows for any means useful to carrying out those powers.
One of the implied powers of Congress is the power to tax and spend. The Taxing and Spending Clause, also known as the General Welfare Clause, grants Congress the power to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States". This clause has been interpreted to imply the federal government's taxing and spending power. The power to tax implicitly includes the power to spend the revenues raised to meet the government's objectives.
The scope of Congress's power to tax and spend has been a subject of debate since the inception of the federal government. While some argue that spending must be tied to one of the specifically enumerated powers, others, like Alexander Hamilton, advocate for a broader interpretation, viewing spending as an independent power that Congress can exercise to benefit the general welfare. The Supreme Court weighed in on this debate in 1936, but the reach of taxing power limitations remains partially unclear even today.
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Implied powers and the military draft
The United States Constitution is unique in that it is a document of limited powers. In theory, the government only possesses the powers specifically granted to it by the Constitution. Most of these powers are listed in Article I, Section 8. However, the Constitution's framers knew that the enumerated powers in Article I, Section 8 would not be adequate to address all the situations and issues that Congress would need to confront.
Article I, Section 8 grants Congress a specific set of powers known as "expressed" or "enumerated" powers. However, the 18th 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 power, known as the "Necessary and Proper Clause" or the "Elastic Clause", grants Congress the ability to pass any laws considered "necessary and proper" for effectively exercising its enumerated powers.
The concept of implied powers is not new. 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 necessary to carry out those duties. He further argued that the "general welfare" and "necessary and proper" clauses of the Constitution gave it the elasticity sought by its framers.
The question of Congress's implied powers to charter a bank came before the Supreme Court in McCulloch v. Maryland (1819). Chief Justice John Marshall, citing Hamilton's argument, upheld a bill passed by Congress creating the Second Bank of the United States. Marshall argued that Congress had the right to establish the bank as the Constitution grants Congress certain implied powers beyond those explicitly stated.
The military draft law is a controversial but legally mandatory law enacted to implement Congress's expressed Article I power to "provide for the common Defence and general Welfare of the United States." Congress's implied powers allow it to pass laws that may not seem to be within its constitutional powers, such as gun control. Thus, the military draft law can be seen as an example of Congress's implied powers to pass laws necessary for the defence and welfare of the nation.
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Frequently asked questions
Article I, Section 8 of the US Constitution grants Congress implied powers, also known as "elastic" powers.
Implied powers are those that are assumed by the US government but are not explicitly stated in the Constitution. They are derived from powers that are directly outlined in the Constitution.
Yes, the creation of the IRS is an example of Congress using its implied powers. Another example is the passing of the Revenue Act of 1861, which created the nation's first income tax law.
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 clause" and the "necessary and proper clause" gave the Constitution elasticity.
Expressed powers are directly given to the government and are explicitly stated in the Constitution. Implied powers, on the other hand, are derived from interpretation and are not directly outlined in the Constitution.
