What are Implied Powers?

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  • Written By: Mary McMahon
  • Edited By: C. Wilborn
  • Last Modified Date: 23 March 2020
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Implied powers are powers that are not explicitly spelled out in a contract or legal document but can be assumed because, without those powers, the document would not be functional. This term is commonly used in the context of the laws of the United States, although many other legal systems create room such powers. Having them creates some flexibility, and these powers can be challenged, ensuring that grabs for control do not result in a person or government seizing powers that are not, in fact, implied.

The classic example of implied powers in the United States comes up in the context of the Constitution. The Constitution is a relatively simple and straightforward document that sets out the branches of government, discusses specific powers, and delegates other powers to the states under the 10th Amendment in the Bill of Rights. Under the so-called "necessary and proper clause," however, the United States government has asserted a number of implied powers.


The logic of this is that some of the powers spelled out in the Constitution require other powers, particularly for the legislature. As such, it is assumed that, if a power is needed to accomplish something that is "necessary and proper" to the running of the United States, it should be granted. In some cases, Congress has asserted such powers and had them challenged in court, illustrating that there is a mechanism in place both for assuming these powers and questioning them. The challenge from the State of Maryland over the establishment of the Bank of the United States is an example of a situation in which Congress used implied powers, had those powers challenged, and was vindicated in court.

Without implied powers, every single power would need to be carefully laid out. If changes needed to be made in order to ensure the smooth running of the country, they would have to be moved through the legislative process. This could result in costly and substantial delays that would hinder the operations of the government and potentially threaten national security.

Having powers be implied is not the same thing as having the ability to seize any powers. The Constitution is very meticulous about the separation of powers and attempts to blend the three branches of government would likely not stand up in court. Likewise, the United States empowers citizens as well as government agencies to challenge policies and the law, providing a system for challenges to attempts to exercise powers not granted under the Constitution.


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Post 4

Sunny27 - I think that if congress was really interested in applying the implied powers and the necessary and proper clause with respect to health care legislation they would allow insurance to be sold across state lines.

This way the increased competition would push insurance prices down and more people could afford to buy insurance. By doing this the consumer gets to choose what plan is best and will get a lower price for their insurance needs.

We will not have to add the budget deficit for these savings to occur yet congress seems okay with bankrupting the United States and threatening our AAA bond rating.

Post 2

Crispety- I agree wholeheartedly. The states have reserved powers under the 10th amendment too. For example, the recent passage of the socialized health care bill was deemed unconstitutional by two federal courts because it tries to regulate interstate commerce by forcing US citizens to purchase health care coverage or face fines and incarceration.

The last federal court judge threw out the entire bill saying that the whole thing was unconstitutional yet our federal government is acting like no such ruling took place.

I know that the founders of our country despised a strong central government because of the bad experience with the tyranny of the British.

The constitution of the United States is not being respected when we pass laws that are unconstitutional and we act like nothing ever happened. I can’t wait for the Supreme Court to hear the case. Maybe then the federal government would be forced to respect the states more.

Post 1

I think that a case that expresses the implied powers of congress was McCulloch v Maryland. In the McCulloch v Maryland implied powers case the state of Maryland lost the right to tax a bank created by the federal government.

Justice Marshall noted that congress had the right to establish a federal bank and the states did not have the right to tax it.

The elastic clause implies that congress has the right to create laws that they deem appropriate and creating the bank was what congress wanted to do.

I think that the implied powers of congress have gone a bit too far and some of the bills that they are passing do not seem right for the people of the United States.

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