The Implied Powers of the United States Congress
Chapters 10-12 – “The United States Congress”
Name: ________________________________________
The last power enshrined in Article I, Section 8, Clause 18 – one of the most important and controversial clauses in the
entire Constitution – is the "Necessary and Proper Clause." This clause grants Congress a set of so-called implied powers.
That is, powers not explicitly named in the Constitution but assumed to exist due to their being necessary to implement
the expressed powers that are named in Article I.
But what the heck does that mean, exactly?
We know that Congress has the power to regulate interstate commerce (Art. I, Sec. 8, Cl. 3). But, does Congress have the
power to, say, make a rule setting a national minimum wage? Is that minimum-wage law really "necessary and proper"
for Congress to exercise its authority to regulate interstate commerce?
Today, most people would say yes. We do have a national minimum-wage law, and very few people now argue that the
law should be considered unconstitutional. We interpret the commerce clause pretty loosely, assuming that Congress
has the legitimate authority to pass all kinds of economic rules and regulations as a "necessary and proper" part of
exercising its broad commerce powers (“loose constructionism”).
But this wasn't always the case. Throughout the late nineteenth century and well into the 1930s, the Supreme Court
insisted that such laws were unconstitutional, that they were not a "necessary and proper" part of regulating interstate
commerce at all and thus the government had no right to enforce them (“strict constructionism”).
What changed? Not the Constitution. But our understanding of what's "necessary and proper" today simply isn't the
same as what it was a century ago. Now you can see why Article I, Section 8, Clause 18 is sometimes called "the Elastic
Clause" – the definition of "necessary and proper" can be stretched pretty far in one direction or the other, depending
upon the dominant political trends of the moment.
And because the definition of "necessary and proper" is so subjective, the implied powers* that derive from the
Necessary and Proper Clause have often been extremely controversial and subject to ferocious political disagreement.
And this has been the case since at least George Washington's presidency, if not even before.
Expressed
Power of
Congress...
The Need to
Enforce an
Expressed
Power...
The
"Necessary
and Proper"
Clause...
Implied
Powers of
Congress!
Directions: Each of the following actions indicates an ‘Implied power’ of Congress. Match each ‘Implied power’ to the
appropriate ‘Expressed power’ in the chart below. “The U.S. Congress implied that because it has the expressed power to
do __________, then it must have the power to do __________.”
A. Creation of the Internal Revenue Service (IRS)
B. Creation of the Federal Reserve (“The Fed”)
C. Passage of the Naturalization Act of 1790
D. Establishment of a national minimum wage law
E. Creation of the Selective Service System (SSS)
F. Creation of the Immigration and Customs Enforcement Agency (ICE)
G. Regulation of banking throughout the country
H. Prevention of discrimination in workplaces and public facilities
I. Prevention of mail fraud and obstruction of mail
J. Creation of the United States Postal Service (USPS)
K. Prevention of the states allowance of medical marijuana
L. Passage of the Chinese Exclusion Act of 1882
M. Creation of the United States Courts of Appeals
N. Passage of the War Powers Resolution of 1973
O. Creation of the U.S. Patent and Trademark Office
P. Passage of the Judiciary Act of 1789
Q. Creation of the Uniform Code of Military Justice
R. Passage of the Residence Act of 1790
S. Entrance into the North American Free Trade Agreement (NAFTA)
T. Issuance of ‘copyrights’ and ‘patents’
U. Passage of the Sherman Anti-Trust Act, 1890
V. Creation of the U.S. Air Force, 1947
W. Passage of the Interstate Highway Act, 1956
Expressed Power of Congress
Power to lay and collect taxes.
Power to borrow money on the credit of the United States.
Power to regulate commerce throughout the country and
with foreign nations.
Power to establish uniform laws dealing with
naturalization and citizenship.
Power to establish Post Offices and Post Roads
Power to protect “intellectual property.”
Power to “constitute tribunals inferior to the Supreme
Court.”
Power to declare war.
Power to raise and support an army and navy.
Power to make rules for the ‘Government and Regulation’
of the military.
“To exercise exclusive legislation in all cases whatsoever,
over such District as may, by cession of particular states,
and the acceptance of Congress, becomes the seat of the
government of the United States…”
Implied Power of Congress