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Implied Powers

Updated on July 7, 2010

Implied Powers, in the American political system, are powers exercised by the national government that are not specifically enumerated in the United States Constitution but are inferred from those listed. It is a fundamental principle of American constitutional law that the national government does not have authority to deal with problems merely because they are national in scope. The Constitution enumerates all the powers delegated to the national government, and the 10th Amendment stipulates that "The 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." Nevertheless, national powers have been greatly expanded by the interpretation given the provision in Article I, section 8, of the Constitution, which empowers Congress "To make all Laws which shall be necessary and proper for carrying into Execution... all... Powers vested by this Constitution in the Government of the United States. . . ."

The basic approach that has dominated American constitutional interpretation was adopted by the U. S. Supreme Court in the case of McCulloch v. Maryland in 1819. Here the issue was whether Congress might charter a bank, a subject on which the Constitution was wholly silent. The court upheld the bank charter law on the ground that it was "necessary and proper" for executing delegated powers involving the handling of money. The court declined, once and for all, to read "necessary" as meaning "indispensable."

Chief Justice John Marshall stressed that a constitution could not be expected to include all details about government. He observed that if it did contain "an accurate detail of all the subdivisions of which its great powers will admit, and of ah1 the means by which they may be carried into execution," then it "would partake of a prolixity of a legal code, and could scarcely be embraced by the human mind." Noting that the U. S. Constitution was "intended to endure for ages to come," he stated the principle of broad interpretation as follows: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

In the course of time every delegated power has served as a peg upon which to hang implied powers. Thus, although the Constitution does not mention the enactment of criminal laws, Congress has created a substantial criminal code in order to carry out delegated powers. Robbing a post office, transporting a stolen auto across state lines, and cheating on income tax are federal crimes. The doctrine of implied powers has been applied particularly in the areas of commerce, taxation, the postal services, and military and foreign affairs.

The following incident, which occurred during World War II, illustrates how far the doctrine has been stretched. When the Federal Bureau of Investigation joined the manhunt for escapees from an Illinois penitentiary, the question was raised as to its interests in a matter involving convicts from a state jail, sentenced by a state for violating a state law. The explanation that the convicts had violated a federal requiring all persons to notify their draft , of any change of address.


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