Justifying the Implied Powers of the Federal Government
The authors of the U.S. Constitution wanted to replace the weak national
government of the Articles of Confederation with a stronger central government.
However, they were concerned about giving the new national government too
much power. They tried to limit the strength of Congress by specifically listing the
powers that Congress could have. But they recognized that they could not
anticipate every power that Congress would need in future decades and
centuries, so they ended the list of enumerated (specifically listed) powers with a
special power to address this problem. Article I, Section 8, Clause 18 of the
Constitution is often called the necessary and proper clause, or the elastic
clause.
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Article I, Section 8, Clause 18 of the U.S. Constitution
"[The Congress shall have Power] . . . [t]o make all Laws which
shall be necessary and proper for carrying into Execution the
foregoing Powers and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof."
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Questions to Consider:
- Does this clause give unlimited power to Congress to make laws? Support
your answer with evidence from the clause.
- Why do you think this clause is sometimes called the elastic clause?
- After studying the distinction between strict constructionists and loose
constructionists, how do you think each group would interpret the amount of
power the clause gives Congress?
Can We Justify the Implied Powers of Congress?
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. For
example, Congress may allocate money to test a missile-defense system
(something not specifically listed in the Constitution) because Article I, Section 8,
Clause 12 gives Congress the power to "raise and support Armies".
While the above example 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. The exercise
below gives you a list of implied powers of Congress. Beside each one, try to
locate a clause in Article I, Section 8 of the Constitution that could justify
Congress assuming that implied power. If you do not think there is justification in
the Constitution for that power, write "no justification" in the space provided. Be
prepared to back up your answers.
IMPLIED POWER:
Congress gives licenses to broadcasters to play music on the
radio.
ANSWER:
Clause 3 may justify this activity. It gives Congress the power to
regulate interstate commerce. Broadcasting is a business. Thus, it is commerce.
Airwaves cross over state lines, so it involves interstate commerce.
- Congress sets a federal minimum wage.
- Congress establishes the United States Air Force.
- Congress establishes national parks.
- Congress creates federal laws against pollution.
- Congress makes laws regarding discrimination in employment.
- Congress decides that televisions should have V-chips that enable parents to
block certain shows.
- Congress passes the Gun-Free School Zones Act prohibiting anyone from
possessing a firearm in a school zone.
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