What are implied powers of Congress

• The "Elastic Clause" of the Constitution grants Congress power to pass unspecified laws "necessary and proper" for the exercise of its expressed powers
• Implied powers have often been controversial
• Over time, Congress's powers have grown as more and more kinds of government activity have been accepted as implied powers

We know that Congress has the power to regulate interstate commerce. (It says so right there in Article I, Section 8, Clause 3.) But does Congress have the power to, say, make a rule setting a national minimum wage? Is that minimum-wage law really "necessary and proper" for Congress to exercise its authority to regulate interstate commerce?

Today, most people would say yes. We do have a national minimum-wage law, and very few people now argue that the law should be considered unconstitutional. We interpret the commerce clause pretty loosely, assuming that Congress has the legitimate authority to pass all kinds of economic rules and regulations as a "necessary and proper" part of exercising its broad commerce powers.

But this wasn't always the case. Throughout the late nineteenth century and well into the 1930s, the Supreme Court insisted that such laws were unconstitutional, that they were not a "necessary and proper" part of regulating interstate commerce at all and thus the government had no right to enforce them.

And because the definition of "necessary and proper" is so subjective, the implied powers that derive from the Necessary and Proper Clause have often been extremely controversial and subject to ferocious political disagreement. And this has been the case since at least George Washington's presidency, if not even before.

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The concept of implied powers has existed since the Constitution was written, though the phrase itself has been around for longer than the Constitution itself has. In fact, it’s existed in political theory since at least the 1780s. An early work from 1785 references the implied Powers and Privileges of political bodies in Ireland. Since Ireland and its neighbors were already established as sovereign nations, it makes sense that the United States wouldn’t be the first to use the phrase. The phrase became more commonly associated with the United States and its Constitution as late as the 1810s.

The concept of implied powers became important in establishing the constitutionality of the First Bank of the United States. This bank would handle the war debt from the American Revolution and would help standardize the currency of the newly independent country. It was eventually built, but when it was proposed, citizens protested, saying that it didn’t abide by the founding document (the Constitution). In 1791, Alexander Hamilton stated that while the federal government is granted explicit powers via the Constitution, he also believed that the authority of implied powers should be recognized as an important part of the government’s ability to function properly. He believed that these implied powers should be treated as equal to the more explicitly conferred powers. He also stated that many other powers that the government exerts are actually only implied as well.

In 1819, the United States Supreme Court arbitrated the case McCulloch v. Maryland. The case was to settle a dispute about chartering the Second Bank of the United States. There were concerns about its constitutionality, since it was controlled by private stockholders, yet also served as the depository for federal dollars. State banks didn’t like this because this positioned the Second Bank as a direct competitor. And indeed, the state banks started failing in 1818 and blamed the Second Bank for their troubles.

The Second Bank also refused to pay the tax on banks not chartered within the state, which led to it being sued by the state of Maryland. Led by Chief Justice John Marshall, Hamilton’s statements about implied powers in government were officially affirmed. The court found that Congress had powers explicitly laid out by the Constitution, and also had the authority to do what it needed to do beyond the Constitution.

In this case, the Supreme Court ruled that although the Constitution didn’t mention the creation of banks at all, Congress did indeed have the power to do so via these implied powers. The power came through the Necessary and Proper Clause in Article I of the Constitution. This specifically relates to the creation of a national bank because the bank would serve as an agent, carrying out tasks explicitly conferred to the government, such as collecting taxes. The court case also ruled that the tax by Maryland on the Second Bank of the United States was unconstitutional.

Implied powers are those powers are assumed by the United States government that are not explicitly stated in the Constitution. In particular, implied powers refer to those powers that Congress can exercise but are not directly outlined in the nation’s founding document.

Congress, Implied Powers, and Article 1 of the Constitution

Congress can exercise powers not explicitly expressed in the Constitution but considered “necessary and proper” to carry out its specified powers. Most of these implied powers are derived from Article 1 of the United States Constitution.

Article 1, Section 8 of the Constitution has a clause known as the implied powers, or elastic, clause. It specifies that Congress can make “all Laws which shall be necessary and proper” to carry out its stated or enumerated powers.

In other words, this power enables Congress to govern the nation as it evolves effectively. The original framers of the Constitution included this provision to allow the government’s power to change over time. 

The Early Republic and Implied Powers

In the early days of the Republic, implied powers became relevant for whether the federal government had the power to create a national bank. In 1791, Congress created the First Bank of the United States based on its implied powers. Alexander Hamilton defended the bank’s creation by interpreting the Constitution to mean Congress had such a right to provide for the “general welfare of the nation.”

In 1819, the Supreme Court confirmed this Congressional power in a decision known as McCulloch vs. Maryland. This John Marshall court case is a prime example of defending Congress’s implied power because it does not directly state in the Constitution that the government has the authority to create a bank. 

Expressed Powers Are Different

While implied powers refer to those powers that are more interpretative, expressed powers are directly given to the government. They are also stated in the Constitution.

17 expressed powers are clearly stipulated in the Constitution. They are also referred to as delegated or enumerated powers.

Article 1, Section 8 of the Constitution is also the place to look for these delegated powers. For example, Congress has the express power to collect taxes and regulate commerce. This branch of the government is also directly empowered to coin money and declare war.

Examples of Implied Powers

From the early Republic period to the modern-day, the United States government has increased the use of its implied powers. It did so to create the Internal Revenue Service and secure minimum wage protections based on its stated authority to collect taxes.

The United States Congress has also established implied powers based on its capacity to regulate commerce. This established commerce power has predominantly been used for the implied power of regulating firearms. 

Since 1927, Congress has passed laws to regulate the sale and possession of firearms. Congress has referred to its expressed power to regulate interstate commerce to justify these laws. As discussed below, this implied power is a point of debate regarding the Second Amendment’s right to bear arms.

Creating a draft to raise an army is also a prominent example of implied powers. The use of a draft before the entry of the United States into World War II, for example, is not something directly provided for in the Constitution. However, based on the established power of Congress to create an army, the draft became an implied power.

More recently, to protect the nation’s general welfare, the United States government also established a national healthcare system. In 2010, the Affordable Care Act was passed by Congress and continues to be a topic of heated debate.

Are Implied Powers Good for the Nation?

By their nature, implied powers are open to interpretation and, therefore, can be seen as good and bad for the nation. Some may consider the expansion of federal power a positive trend, while others would not.

For example, much debate today surrounds the Second Amendment right to bear arms. Some would contend that the government’s implied power to regulate firearms is positive for the nation. Others would argue that it is an infringement of civil liberties.

Another key area of a long-standing debate over implied powers relates to the Tenth Amendment. This is the last amendment of the Bill of Rights and states that “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 means that someone may construe the expansion of implied powers as infringing upon state or individual rights. 

Does the President Have Any Implied Powers?

Yes, the president does have implied powers too. A prime example would be the power to make executive agreements. These are similar to formal treaties with other nations but do not require the approval of the Senate.

The president can also expand on foreign policy. This may mean a change in approach, such as the policy of containment during the Cold War. The president can also issue executive orders based on implied powers. For example, Franklin Roosevelt issued Executive Order 9066 during World War II to establish Japanese American Internment camps.

Implied Powers, Federalism, and the Federal Government

The United States was established under a federalist model of government. This means that power is distributed and shared from the federal to state levels. Implied powers run right into the balance and debate over power between the national and state governments.

Interpretations of Article 1 of the Constitution have tended to confirm federal authority based on implied powers. For instance, interpretations of implied powers related to the commerce clause reinforced Congress’s authority. In the 1824 United States Supreme Court case Gibbons vs. Ogden, the ruling affirmed Congress’s authority over the states of New York and New Jersey based on its power to regulate interstate commerce. 

Debates and discussions will surely continue over federalism, but historically Congress has tended to gain more power through implied powers.