Implied Powers

Necessary and Proper

Necessary and Proper

• Implied Powers are those powers that are not written into the USC but drawn from those that are….

• Necessary and Proper Clause:– Article I, Section 8– “to make all laws which shall be necessary and

proper for carrying out into execution the foregoing powers, and all other powers vested by this Constitution in the government of the U.S….”

Necessary and Proper Clause

• Known as the ‘elastic clause’ – because its been stretched so far over the years

• The debate over the meaning of the this clause continues today:– Strict constructionist– Liberal constructionist

Strict Constructionist

• Led by Thomas Jefferson• Congress should have its

expressed powers and only those powers absolutely necessary to carry out the expressed powers

• Jefferson said, “that government is best which governs least.”

Liberal Constructionist

• Led by Alexander Hamilton• Favored a liberal

interpretation of the USC that gave the federal government broad powers

• Hamilton, said in Federalist #70, America needed an “energetic government”

McCulloch v. Maryland

• Supreme Court case that upheld the concept of implied powers

• Since then the power of the federal government has grown exponentially

• Factors for growth:– Wars– Economic crises – National emergences– People demand more and more services

McCulloch v. Maryland

• Court found the creation of a national bank was necessary and proper based on the expressed powers of:– Taxing power– Borrowing power– Currency power– Commerce power

Doctrine in Practice

• Liberal interpretation has allowed the National government to meet the challenges of times

• Has virtually eliminated the need to amend the Constitution.

• Congress has exercised implied powers based on :– Commerce power– Power to tax and spend– War powers

Commerce Power

• Gives Congress the power to regulate domestic and foreign trade

• “Commerce” interpreted to mean:– Production of goods– Buying and selling of goods– Transportation of people and good

Commerce Clause

• Basically regulate any economic activity– Manufacturing – Regulation of wages (minimum wage)– Food and drugs– Air travel– Building of the interstate highway system– REGULATION OF THE INTERNET!!!• Net neutrality

Limits on Commerce Power

• Congress not free to do whatever it likes– SCOTUS has reigned in Congress when it has

overstep its bounds• Can’t pass laws to promote the ‘general

welfare of the United States’ • Can tax and spend money to do so:– Education, farm subsidies, unemployment

compensation, social security, medicare, ……..

War Powers

• Implied power used to execute Congress’s war power– Exception is that it can’t violate any other

provision of the USC. – Can provide for the “draft”• To raise an army or navy

Other Powers

Non-Legislative

Non-legislative Powers

• Constitutional Amendments• Electoral Duties• Impeachment• Executive Powers• Power to Investigate

Constitutional Amendments

• 2/3 Vote of both houses of Congress can propose an amendment to the USC– All 27 amendments added this way

• Article V of USC allows for the states to call for a convention of states to amend– 2/3 of states (34) must request of Congress

• Article V – proposals = balanced budget amendment, prayer in public school, outlaw abortions …….

Electoral Duties

• If no one receives a majority of electoral votes for President– The House of Representatives voting by states is to

decide the issue. – Each state has only one vote to cast with a majority

of states present– Senate must choose the Vice president when no

one receives a majority vote– Each Senator gets one vote, majority of states to

decide the issue.

Impeachment

• The House has the sole power to impeach – to accuse or bring charges – against officials

• The Senate has sole power to judge or convict in impeachment cases

• ‘be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors…’

Impeachment

• Two presidents impeached – not guilty – so remained in office– Andrew Johnson – Bill Clinton

• Richard Nixon – resigned when faced with Articles of Impeachment from the House– Would have been convicted.

Executive Powers

• Must approve appointments to office– Cabinet members, judges, etc

• Must approve all treaties with foreign nations

Power to Investigate

• Congress has the power to investigate any matter that falls within the scope of its lawmaking authority

Questions to Ponder

1. What is the necessary and proper clause and why is it important?

2. Summarize the difference between strict constructionist and liberal constructionist.

3. What are the non-legislative powers of Congress?