Implied Powers of the U.S. Constitution
The United States, unlike most other national governments, is a government of limited powers. In theory, it possess only those powers specifically granted it by the Constitution, most of which are listed (“enumerated”) in Article I, Section 8. The eighteenth and last of the listed powers, however, is the power of Congress to “make all Laws which shall be necessary and proper” to the execution of its specified powers. These laws are therefore made on the basis of Congress’s “implied powers,” and throughout our history, a major issue has been how to define them and determine their extent.
The question of the scope of Congress’s implied powers arose during President George Washington’s first administration in connection with a proposal by Congress to charter a national bank. The power to charter a bank is not granted to Congress as an enumerated power, but does Congress nonetheless possess it as an implied power? In deciding whether to sign or veto the proposal, President Washington asked the advice of Secretary of State Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, and Attorney General Edmund Randolph.
Jefferson and Randolph argued that additional congressional power should not be implied from an enumerated power unless it was absolutely necessary to the exercise of that power. Otherwise, implication would have no stopping point, and Congress would in effect have all power. Therefore, they advised President Washington, the law chartering the bank was unconstitutional. Hamilton argued, on the other hand, that Congress has implied power to adopt any means useful to carrying out the enumerated powers, because it was in the interest of the nation that Congress act efficiently. He said that the bank would be useful to Congress in, for example, executing its war power, which required paying troops and transferring funds from place to place in the nation. Washington accepted Hamilton’s argument, and signed the bill into law.
The question of the power of Congress to charter a bank and, more generally, of the scope of Congress’s implied powers came before the Supreme Court in 1819 in the famous case of McCulloch v. Maryland. The opinion of the Court was by Chief Justice John Marshall, who was, like Hamilton, a member of the Federalist Party and a firm believer in a strong national government. Closely following Hamilton’s argument to President Washington, Marshall held that the Constitution’s grant of enumerated powers to Congress carried with it a grant of the means of making their exercise effective. The Necessary and Proper Clause did not limit the implied powers, he said, to those that were absolutely necessary or indispensable to the execution of the enumerated powers; it was enough that the means chosen by Congress was convenient or useful. The law creating a national bank was within the power of Congress and constitutional, therefore, because the bank was convenient, as Hamilton had argued, for the deposit and transfer from place to place of federal funds.
The McCulloch decision is one of the most important in our history because it effectively settled that the scope of Congress’s implied powers is very broad. Combined with the fact that some of the enumerated powers of Congress, particularly the power to tax (and spend) for the general welfare and the power to regulate interstate commerce, are also very broad, the result is that although the national government is said to be a government of limited power, as a practical matter there is very little, if anything, that is beyond its power to regulate.
Daniel J. Elazar, American Federalism, 3rd ed. (New York: Harper & Row, 1984); and McCulloch v. Maryland, 17 U.S. (4th Seat) 316 (1819).
Lino A. Graglia
Last updated: 2006