U.S. Air Force
If you were to describe the United States, would you think of its government as elastic? If you are looking at the implied powers in Article 1, Section 8 of the U.S. Constitution, you might. Use examples to explore how the implied powers have been used by the U.S. government, and get a clear definition of what implied powers means.
The U.S. Constitution was signed in 1787. There have been a lot of changes to the world since then. Expecting that changes might happen, the framers of the Constitution gave the federal government certain implied powers.
Implied powers are not stated in the Constitution, but instead, they are created under the “necessary and proper” clause using the expressed powers that they do have.
Implied powers are created from Clause 18 in Article 1, Section 18 of the U.S. Constitution. This clause is called the “necessary and proper” clause or “elastic clause.” It 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.
Implied powers were a way for the framers of the Constitution to provide a document that could grow with the United States. Using the expressed powers as a guide, the government would be able to use the “necessary and proper” clause to meet the ever-expanding needs of the American people.
For example, they could set wages that were fair or enact a healthcare bill to ensure that all people were treated fairly and offered the services they needed.
Typically, one of the most famous uses of implied power you will hear discussed is McCulloch vs. Maryland. In this case, Congress used their implied power from the Constitution to create the Second National Bank. They did so because it was considered “necessary and proper” for the general welfare of the United States and its people.
When Maryland tried to place a tax on these notes, John McCulloch appealed it. The Supreme Court ruled in McCulloch’s favor, setting into motion the precedent for the use of implied powers to create laws.
Throughout American history, there have been several ways that implied powers have been used by the United States government. Using their power to regulate commerce, collect taxes, raise an army and establish post offices, to name a few, the government has enacted the following:
- The U.S. government created the Internal Revenue Service (IRS) using their power to collect taxes.
- The minimum wage was established using the power to regulate commerce.
- The Air Force was created using their power to raise armies.
- The regulation of firearms is based on using the commerce clause.
- Banning discrimination in the workplace is also based on the commerce clause.
- Regulation of tobacco and alcohol falls under the implied powers in the commerce clause.
- The creation of the American Disabilities Act (ADA) under the commerce clause was later justified by the 14th Amendment.
- The government can punish tax evaders using the power to collect taxes clause.
- Prohibition of mail fraud is based on the clause to establish post offices.
- The creation of the draft uses the power to raise and support armies.
- Legislation on national health care utilizes the clause for general welfare and collecting taxes.
The difference between implied and inherent powers is where you will find them. You will not find inherent powers established in the Constitution. That is because inherent powers are those that the government needs to be able to get their job done right. This can include acquiring land or regulating immigration. Implied powers, on the other hand, are implied through the Constitution and can be debated.
You can’t look at inherent and implied powers without defining “expressed powers” too. These are the 17 powers that are clearly stated in the Constitution. Judgements made for implied powers use one of these expressed clauses as justification. For example, justification for the draft uses Clause 12, “calling forth the Militia to execute the Laws of the Union.”
By its very nature, the “necessary and proper” clause is full of controversy.
The first comes in the wording itself. What is considered “necessary and proper” is subjective depending on the opinion of the person interpreting the article. What one person might consider necessary, others may not. Additionally, the fact that this clause expands the others creates issues, because questions arise as to where that power stops. This generates controversy from the limitations of the articles and the power they create.
For example, the Second Amendment protects the “right of the people to keep and bear arms.” However, the commerce clause has been used to regulate that right. Many could see this regulation as an infringement on their right to bear arms.
While the wording of the elastic clause was meant to make the Constitution timeless, it can lead to controversy because of differences in interpretation and the power it creates. For more, look at the reserved powers under the 10th Amendment. Getting a well-rounded understanding of the Constitution can show you how checks and balances come into play every day.