In American constitutional law, there is a well-recognized principle stating that the federal government has powers not forbidden to it by the national Constitution.
So Congress, for example, has all the powers explicitly listed in the Constitution, plus all the powers that are not forbidden. The former are typically called expressed, delegated, or enumerated powers. The latter is known as implied powers.
Any action of the state legislature is valid and constitutional unless it conflicts with some provision of either the state or national Constitution. Most expressed powers are under Article 1, Section 8 of the US Constitution.
There is often a contrast between constitutional construction as it relates to the national government and constitutional construction as it relates to the state government. According to Dodd (1919, p. 160), the single most important manifestation of judicial action on a national level has been the doctrine of implied powers.
The concept of implied powers is commonly taught in American schools, including in AP Government courses.
In the United States, the term “implied powers” refers to powers that Congress can legitimately exercise but are not explicitly granted to it by the Constitution.
These powers are, nevertheless, deemed “necessary and proper” (U.S. Const. art. I, § 8). For example, Congress has the expressed power to collect taxes. As a result, it also has the implied power to punish tax evasion and to determine which items are taxed more heavily than others (note: taxation is also a concurrent power).
Article I, Section 8 of the US Constitution outlines all expressed powers of Congress. These include the following:
- The power to lay and collect taxes, duties, imposts and excises;
- The power to borrow money on the credit of the US;
- The power to regulate commerce with foreign nations;
- The power to coin money and regulate its value;
- The power to establish post offices and post roads;
- The power to constitute tribunals inferior to the supreme Court;
- The power to declare war;
- The power to raise and support armies;
- The power to make rules for the government and regulation of the land and naval forces;
- The power to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions.
The last paragraph of this section states what is known as the Necessary and Proper Clause or the Elastic Clause:
“The Congress shall have 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.” (U.S. Const. art. I, § 8)
This paragraph often serves as justification for the implied powers of the US Congress. Using the Necessary and Proper Clause, Congress can make the argument that new powers are necessary for the proper running of the country even if they were not originally included in the Constitution.
The President of the United States also has both expressed and implied powers. Unlike Congress, however, the President cannot rely on the Necessary and Proper Clause.
The expressed powers of the President are also listed in the Constitution (U.S. Const. art. II, § 1-3). The implied powers of the President often include the creation of executive orders and the imposition of foreign sanctions.
- The power to create a national bank
- The power to establish a federal minimum wage
- The power to establish a military draft
- The power to punish tax evasion
- The power to create laws regulating imports and exports
- The power to establish a national healthcare system
- The power to create income tax laws
- The power to control immigration
- The power to establish bankruptcy legislation
- The power to establish an air force
- The power to establish the International Revenue Service
- The power to regulate dangerous goods
- The power to regulate medicines
- The power to punish mail fraud
- The power to mint money
- The power to regulate banking
- The power to ban discrimination in workplaces and public facilities
- The power to pass laws to protect the disabled
- The power to regulate shipping items through mail
- The power of the President to create an executive order
- The power of the President to impose domestic and foreign sanctions
- The power of the President to send troops overseas
- The power of the President to dismiss appointed officials
See Also: Examples of Implications
The Necessary and Proper Clause mentioned above (U.S. Const. art. I, § 8) provoked controversy during its inception. Anti-Federalists expressed concern that the clause would grant the federal government boundless power.
Federalists like Alexander Hamilton and James Madison argued that the clause would only permit the execution of powers already granted by the Constitution.
In Federalist No. 33 (Hamilton, 1788/1962), titled The Same Subject Continued: Concerning the General Power of Taxation, Alexander Hamilton defended the Necessary and Proper Clause. He argued that this clause was implicit in the US Constitution.
If Congress is granted a power, it must necessarily be able to draft laws that enable it to execute that power.
Hamilton applies this logic to the issue of taxation. The first expressed power of Congress is the power to collect taxes, so Congress must also have the power to create legislation to collect taxes and punish tax evasion.
James Madison concurred with Hamilton and argued in Federalist No. 44 that the Necessary and Proper Clause is invulnerable (Madison, 1788). According to Madison, without the substance of this clause, the whole Constitution would be “a dead letter.”
Madison argued that had the convention attempted to enumerate all the powers that may fall under the category of “necessary and proper”, the Constitution would involve a complete digest of laws on every subject to which the Constitution relates.
Not only that, but the Constitution would also have to consider all the possible changes which may arise in the future.
Madison used the same line of reasoning as Hamilton, arguing that “no axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”
In 1791, Alexander Hamilton used the Necessary and Proper Clause to defend the constitutional status of the new First Bank of the United States.
Hamilton argued that the bank was a reasonable means of carrying out powers related to taxation and funds.
He claimed that the clause applied to activities reasonably related to constitutional powers, as he had done previously in Federalist No. 33.
Eventually, the bill and the establishment of a national mint were passed by Congress and signed by President George Washington (Allgor, 2006).
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), was a US Supreme Court decision that has been described as “the most important Supreme Court decision in American history defining the scope of Congress’s powers and delineating the relationship between the federal government and the states” (Chemerinsky, 2017, p. 116).
The case established two important principles in constitutional law:
- the Constitution grants to Congress implied powers to implement the Constitution’s express powers to create a functional national government and
- state action may not impede valid constitutional exercises of power by the federal government.
The state of Maryland had attempted to impede the operations of the Second Bank of the United States by imposing a prohibitive tax on out-of-state banks, the Second Bank of the United States being the only one.
The Court ruled against Maryland in an opinion written by Chief Justice John Marshall, a Federalist. Marshall stated that the Constitution did not explicitly permit Congress the power to create a federal bank, but the power was implied.
The case affirmed Hamilton’s view, stated in Federalist No. 33, that legislation reasonably based on express powers was constitutional.
Wickard v. Filburn, 317 U.S. 111 (1942), is a United States Supreme Court decision that dramatically increased the regulatory power of the federal government.
The Supreme Court affirmed that it was a crime for a farmer to produce more wheat than was allowed under price and production controls, even if the excess production was for the farmer’s consumption.
The Necessary and Proper Clause was used to justify the regulation of production and consumption.
In the United States, implied powers are those powers of the government that are not expressly stated in the Constitution but are implied.
Congress, for example, has the powers explicitly listed in the Constitution and all the powers that are not listed nor forbidden.
The former are typically called expressed, delegated, or enumerated powers. The latter are called implied powers.
Allgor, C. (2006). A Perfect Union. Cambridge: Macmillan.
Chemerinsky, E. (2017). Constitutional Law (5th ed.). New York: Aspen Casebook Series.
Dodd, W. F. (1919). Implied Powers and Implied Limitations in Constitutional Law. The Yale Law Journal, 29(2), 137–162. https://doi.org/10.2307/786104
Hamilton, A. (1962). The Papers of Alexander Hamilton, vol. 4, January 1787 – May 1788. Ed. Harold C. Syrett. New York: Columbia University Press.
Madison, J. (1788). Restrictions on the Authority of the Several States. U.S. Congress. https://guides.loc.gov/federalist-papers/text-41-50#s-lg-box-wrapper-25493408
McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 316 (1819)
U.S. Const. art. I, § 8.