Implied Powers

The term “implied powers” refers to those powers of the U.S. government that the Constitution does not refer to by name. Instead, the government assumes the Constitution affords them these powers based on prior decisions related to them, which established precedent. An example of implied powers is Congress passing laws restricting the sale and ownership of firearms for U.S. citizens. To explore this concept, consider the following implied powers definition.

Definition of Implied Powers

Noun

  1. Powers that the government assumes and enforces, despite the Constitution not mentioning these powers by name.

Origin

1791

Implied Powers of Congress

The Constitution makes mention of the implied powers of Congress in Article I, Section VIII. Specifically, this section, referred to as the “necessary and proper clause,” notes that:

“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 any Department or Officer thereof.”

This means that the government can make any laws that it feels are “necessary and proper” in helping it enforce those powers the Constitution does mention. When the founding fathers created the Constitution, it was impossible for them to anticipate every individual case that would come to rely on it. Therefore, by including the “necessary and proper clause,” they covered their bases insofar as allowing the government to act as it sees fit, within reason. This is why the government often relies on the doctrine of implied powers when creating and passing new laws.

Difference Between Implied Powers and Express Powers

The difference between implied powers and express powers is that the Constitution does not spell out exactly what implied powers are. However, it does discuss express powers in Article I. Implied powers are those powers that are “necessary and proper” for Congress to be able to fulfill its duties. The express powers, on the other hand, include Congress’ abilities under the Constitution, such as the power to:

  • Regulate interstate commerce
  • Declare war
  • Issue patents

An example of implied powers versus express powers is the way in which officials collect taxes. Congress has the express power to collect taxes. It also has the implied power to create an agency – the Internal Revenue Service –and entrust it to handle the collection of taxes.

Implied Powers Example Involving the First Bank of the United States

An example of implied powers involving the U.S. Supreme Court is the case of McCulloch v. Maryland. The Court decided this case in 1819. Here, the United States government needed to pay off the debt that the nation acquired during the War of 1812. Before the war, the First Bank of the United States would do this. However, the permission, or charter, that allowed the bank to do this had expired in 1811.

In 1816, Congress authorized a charter for the Second Bank of the United States. The bank opened its first branch in Philadelphia, then a second in Baltimore. James McCulloch worked as a cashier for the Baltimore branch. When the state sought to collect the taxes imposed on the Bank, McCulloch refused to pay. The state then sued him, demanding that the bank pay its taxes in full.

Trial and Appeal

After the conclusion of the trial in the matter, the trial court ruled in favor of the state of Maryland. McCulloch appealed, however the appellate court upheld the decision. McCulloch then filed for a writ of certiorari for the Supreme Court to review the case, which it did in February of 1819. The Court then had to decide whether Congress had the authority to create the bank in the first place. If so, did the state of Maryland then have the authority to levy a tax against the federal bank?

Supreme Court Ruling

The Court ultimately ruled, unanimously, in favor of McCulloch. The Court found that Congress was within its power to create the bank, and that the bank was fulfilling its duties in accordance with the rules of the Constitution. Further, the Court ruled that the tax the state of Maryland had levied against the bank was unconstitutional. By taxing the bank, the state of Maryland was, in fact, levying a tax against every U.S. citizen, which no state has the authority to do.

Decision Excerpt

Said the Court in its Decision:

“That the power of taxing it by the States may be exercised so as to destroy it is too obvious to be denied. But taxation is said to be an absolute power which acknowledges no other limits than those expressly prescribed in the Constitution, and, like sovereign power of every other description, is entrusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State, in the article of taxation itself, is subordinate to, and may be controlled by, the Constitution of the United States. How far it has been controlled by that instrument must be a question of construction.

In making this construction, no principle, not declared, can be admissible which would defeat the legitimate operations of a supreme Government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the Constitution.”

Related Legal Terms and Issues

  • Levy – The act of charging a tax, fee, or fine.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.
  • Writ of Certiorari – An order issued by a higher court demanding a lower court forward all records of a specific case for review.

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