The Implied Powers of Congress

Powers Considered 'Necessary and Proper'

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Longley, Robert. "The Implied Powers of Congress." ThoughtCo, Nov. 10, 2016, thoughtco.com/implied-powers-of-congress-4111399. Longley, Robert. (2016, November 10). The Implied Powers of Congress. Retrieved from https://www.thoughtco.com/implied-powers-of-congress-4111399 Longley, Robert. "The Implied Powers of Congress." ThoughtCo. https://www.thoughtco.com/implied-powers-of-congress-4111399 (accessed October 17, 2017).
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Democrats Hold Sit-In In House Chamber To Force Vote On Gun Control Legislation. Pete Marovich / Getty Images

 How can the U.S. Congress pass laws that the U.S. Constitution does not specifically give then the power to pass? Often Congress exercises its “implied powers” to pass laws it considers “necessary and proper.”

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.

The ‘Elastic Clause’

However, Congress 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, are 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 the 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 totally 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, “let 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.”

And Then, There is ‘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.