The Implied Powers of Congress

In the United States federal government, the term “implied powers” applies to those powers exercised by Congress that are not expressly granted to it by the Constitution but are deemed “necessary and proper” to effectively execute those constitutionally granted powers.

How can Congress pass laws that the U.S. Constitution does not specifically give it the power to pass?

Article I, Section 8 of the Constitution grants Congress a very specific set of powers known as “expressed” or “enumerated” powers representing the basis of America’s system of federalism — the division and sharing of powers between the central government and the state governments.

In a historic example of implied powers, when Congress created the First Bank of the United States in 1791, 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.

In a classic argument for implied powers, Hamilton explained that the sovereign duties of any government implied that the government reserved the right to use whatever powers necessary to carry out those duties.

Hamilton further argued that the “general welfare” and the “necessary and proper” clauses of the Constitution gave the document the elasticity sought by its framers. Convinced by Hamilton's argument, President Washington signed the banking bill into law.

In 1816, Chief Justice John Marshall cited Hamilton’s 1791 argument for implied powers in the Supreme Court’s decision in McCulloch v. Maryland upholding 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 to Congress certain implied powers beyond those explicitly stated.

The ‘Elastic Clause’

Congress, however, draws its often controversial implied power to pass apparently unspecified laws from Article I, Section 8, Clause 18, which grants Congress the power,

“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 so-called “Necessary and Proper Clause” or “Elastic Clause” grants Congress powers, while not specifically listed in the Constitution, that is assumed to be necessary to implement the 27 powers named in Article I.

A few examples of how Congress has exercised its wide-ranging implied powers granted by Article I, Section 8, Clause 18 include:

• Gun Control Laws: In clearly its most controversial use of implied powers, Congress has been passing laws limiting the sale and possession of firearms since 1927. While such laws may seem to be at odds with the Second Amendment ensuring the right to “keep and bear arms,” Congress has consistently cited its expressed power to regulate interstate commerce granted to it by Article I, Section 8, Clause 3, commonly called the “Commerce Clause,” as justification for passing gun control laws.
• Federal Minimum Wage: Another illustration of Congress’ use of its implied power can be seen in its rather loose interpretation of the same Commerce Clause to justify its passage of the first Federal Minimum Wage law in 1938.
• Income Tax: While Article I gives Congress the broad specific power to “lay and collect Taxes,” Congress cited its implied powers under the Elastic Clause in passing the Revenue Act of 1861 creating the nation’s first income tax law.
• The Military Draft: The always controversial, but still legally mandatory military draft law was enacted to implement Congress’ expressed Article I power to “provide for the common Defense and general Welfare of the United States.”
• Getting Rid of the Penny: In almost every session of Congress, lawmakers consider a bill to do away with the penny, each of which costs taxpayers nearly 2-cents each to make. Should such a “penny killer” bill ever pass, Congress will have acted under its broader Article I power to “coin Money…”

History of Implied Powers

The concept of implied powers in the Constitution is far from new. The framers knew that the 27 expressed powers listed in Article I, Section 8 would never be adequate to anticipate all of the unforeseeable situations and issues Congress would need to address through the years.

They reasoned that in its intended role as the most dominant and important part of the government, the legislative branch would need the broadest possible lawmaking powers. As a result, the framers built the “Necessary and Proper” clause into the Constitution as a safeguard to ensure Congress the lawmaking leeway it was certain to need.

Since the determination of what is and is not “necessary and proper” is subjective, the implied powers of Congress have been controversial since the earliest days of the government.

The first official acknowledgment of the existence and validity of the implied powers of Congress came in a landmark decision of the Supreme Court in 1819.

McCulloch v. Maryland

In the McCulloch v. Maryland case, the Supreme Court was asked to rule on the constitutionality of laws passed by Congress establishing federally-regulated national banks.

In the court’s majority opinion, revered Chief Justice John Marshall affirmed the doctrine of “implied powers” granting Congress powers not expressly listed in Article I of the Constitution, but “necessary and proper” to carry out those “enumerated” powers.

Specifically, the court found that since the creation of banks was properly related to Congress’ expressly enumerated power to collect taxes, borrow money, and regulate interstate commerce, the bank in question was constitutional under the “Necessary and Proper Clause.”

Or as John Marshall wrote,

“(L)et the ends be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

‘Stealth Legislation’

If you find the implied powers of Congress interesting, you might also like to learn about so-called “rider bills,” a completely constitutional method often used by lawmakers to pass unpopular bills opposed by their fellow members.

Implied Powers Controversies

By its very nature, and more so by its application, the “necessary and proper” clause has and will continue to breed controversy.

What is or is not considered “necessary and proper” is purely subjective depending on the opinion of the person interpreting the clause. What one person considers a necessary measure, another might not. Furthermore, since the clause seems to expand the government’s constitutionally granted power without the required amendment process, questions arise as to where that power stops.

The Second Amendment, for example, protects the “right of the people to keep and bear arms.” However, the “necessary and proper” clause is typically used to justify using the commerce clause to regulate the sale and ownership of firearms. Many people could—and do—see this regulation as an infringement on their Second Amendment right to keep and bear arms.

Since they are broad, often vague, and always open to interpretation, implied powers can be seen as good and bad for the nation. While some may view their expansion of federal power as a positive, others may see them as a way of sidestepping the constitutionally mandated legislative process to justify an overreach of that power.

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 under the Commerce Clause 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. 

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 of the President

While not as extensive as those of Congress, the President of the United States has implied powers as well. A prime example is the power to make executive agreements, which are similar to formal treaties with other nations but do not require the approval of the Senate.

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 of Communism 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 and Federalism

The United States was established under a federalist model of government, meaning that power is distributed and shared by the federal to state governments. Implied powers run directly into the balance and debate over power between the national and state governments. Historically Congress has tended to gain more power through implied powers.

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.