Distinguish among the enumerated and implied powers in the United States Constitution and the Massachusetts Constitution.

Focus Question: What are enumerated and implied powers?

  • Enumerated powers are those expressly granted to the federal government by the Constitution.

  • Implied powers enable the federal government to carry out tasks implied by the enumerated powers.

Enumerated Powers of the U.S. Constitution

The enumerated powers of the federal government are listed in Article 1 Section 8 of the U.S. Constitution. The list consists of 18 powers which are given to Congress to exercise control over a free people. The 18th such power is critical, because it gives the federal government to pass laws "necessary and proper" for the use of the powers enumerated in the previous 17 clauses. This clause gives the U.S. federal government implied powers.

Other important enumerated powers were added to the federal government by amendments to the Constitution, including the 13th Amendment, which gave Congress the power to end slavery; the 14th amendment, which gave Congress the power to strike down state laws denying citizens their full "privileges and immunities" or their right to "due process;" and the 16th amendment, which gave Congress the right to levy an income tax.

A video regarding the powers of Congress.

A song by M. DeAngelis regarding the enumerated powers of the federal government.

McCulloch v Maryland

In the historic case of McCulloch v. Maryland (1819), the Supreme Court gave teeth to the "necessary and proper" clause of the Constitution. This clause was held as the power by which Congress could charter the Second National Bank. John Marshall, in his opinion for the majority, argued that the "necessary and proper" clause was designed to expand the power of the federal government, rather than contract such power. By setting a precedent for the use of the "necessary and proper clause," John Marshall expanded the prerogatives of the federal government beyond enumerated powers and justified the use of implied powers.

In this particular case, the incorporation of the Second National Bank was held as being the exercise of an implied power by the federal government. Marshall claimed that
"raising revenue and applying it to national purposes is admitted to imply the power of conveying money from place to place." And Marshall argued that the enumerated right to the federal government to "raise revenue" implied that it would need to convey money from one place to another. Marshall then argued that the government had the right to create a corporation (in this case, the Second National Bank) which would enable it to exercise its power to raise revenue.

Implied Powers

According to the necessary and proper clause, Congress generally may assume additional powers not specifically listed in the Constitution, sometimes called implied powers, if there is a link to a power that is listed in the Constitution. Though sometimes the additional powers may seem like an obvious extension of Congress's power, other powers that Congress has assumed over the years are not so obvious extensions of powers specifically listed in the Constitution.

A lesson plan regarding the implied powers on Congress.

Other Relevant Courth Cases:

Hepburn v. Griswold (1870):

The Legal Tender Act of 1862 established greenbacks as legal tender for the paying back of debts. In the case if Hepburn v. Griswold, Griswold challenged the ability of this act to be applied retroactively to debts incurred before the statute was enacted. Griswold won the case when it was decided by the Supreme Court that the retroactive application of the law violated the 5th amendment guarantee of private property and was not "necessary and proper." The decision in this case limited the implied powers of the federal government.

Sabri v. United States (2004):

In the case of Sabri v. U.S., the ability of the U.S. to convict a real estate developer of bribery was upheld based on the "necessary and proper" clause. A unanimous court upheld the ability of the federal government to prosecute private citizens for bribing public officials, as it was found necessary and proper for Congress to ensure that its spending was not misappropriated in order for it to carry out its enumerated power to "provide for the . . . general welfare of the United states."

United States v. Comstock (2010):

In U.S. v. Comstock, convicted sex offenders challenged the constitutionality of the Adam Walsh Protection and Safety Act. The Supreme Court ruled 7-2 for the United States, with Justices Breyer, Kennedy and Alito concurring for the majority. Kennedy, in his concurring opinion, argued that there could be multiple "links" of the chain connecting an implied power to an enumerated power, which assumes an expansive list of implied powers for the federal government. Kennedy argued that ends mattered in deciding the legality of such a case, not just the means, allowing for a substantive understanding of implied powers. In the majority opinion, Breyer as well argued for a "broad" interpretation of the implied powers of the U.S. federal government.

Justice Thomas dissented and argued that any implied power had to be for the purpose of directly executing at least one enumerated power, referencing a precedent set in U.S. v. Morrison (2000).

Massachusetts Constitution

Like the U.S. Constitution, the Massachusetts Constitution (1780), has a similar system of enumerated and implied powers.