What Are Implied Powers?

Photo of woman holding tax returns
Congress created the IRS using its implied powers.

Definition of Implied Powers

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 1816, 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. The state of Maryland objected and tried, but failed, to overturn the First National 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.

Photo of a handgun
Implied powers have been used to regulate firearms.

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.

Franklin D Roosevelt
Franklin D. Roosevelt used his implied powers during World War II.

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. 

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