Congress: Enumerated and Implied Powers

Congress: Enumerated & Implied Powers  

The Framers of the Constitution enumerated, or listed, the powers of Congress that it could exercise to make laws to govern the country. They understood that they needed to provide some flexibility in the document for representatives to govern for the common good. Therefore, they granted Congress—the legislative branch of government—implied as well as explicit enumerated powers. However, congressional powers were still restricted by the principle of limited government.  

In the Articles of Confederation, the states had delegated strictly limited powers to the national government. The document stated that the sovereign states retained all powers not “expressly delegated” to the Congress. If the power was not explicitly written down, Congress could not act. Moreover, the Articles restricted the national government so much that it had no real power to collect taxes for revenue or regulate trade. The national government under the Articles was therefore weak and ineffectual.  

The Framers of the Constitution tried to avoid repeating these mistakes. Article I, section 8, of the Constitution begins with the clause, “Congress shall have the power to…” Congressional powers were broad and included the right to lay and collect taxes, regulate interstate commerce, declare war, coin money, and establish a court system. The Framers wanted a vigorous national legislature empowered to govern the country effectively.  

They also included a Necessary and Proper Clause—the “elastic clause”—at the end of Article I, section 8. The clause states that Congress has the power to “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.” This means that Congress can exercise powers related to its other powers vigorously but cannot do whatever it wants. For example, only a few years after the Constitution was ratified, Congress created a national bank to fulfill several of its other powers.  

Congress also has implied powers to achieve its objective of making laws for the people. The implied powers are those that were drawn from the enumerated powers. For example, Congress has the power to raise an army and navy, and thus it has an implied power to create an air force, even if the Framers did not envision humans fighting with airplanes and drones.  

James Madison wrote about the principle of implied powers in Federalist #44. He wrote that a clear principle rooted in law and reason was that “whenever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.” Still, Madison promised in Federalist #45 that the powers of Congress were “few and defined,” and therefore consistent with the principle of limited government.  The Constitution listed many powers of Congress with the assumption that what was not mentioned was not given to Congress.  

Lawmakers in the House of Representatives and the Senate take an oath to support and defend the Constitution when they enter office. They have an obligation to follow the Constitution while they are making laws. When crafting and considering a bill, they must decide whether the law is consistent with the Constitution. Therefore, members of Congress interpret the Constitution, just as the president does when deciding whether to sign a bill into law and the Supreme Court does when reviewing a law in a case. 

A good example of this is the congressional power to regulate interstate commerce. Congress must decide what the Constitution means and how expansive that power is. Lawmakers may decide that Congress clearly has the power to regulate items transported across state lines in trains or trucks. But does it include the power to regulate manufacturing? Can Congress regulate commerce that takes place entirely within a state? Can Congress expand the understanding of the Commerce Clause to include regulating the possession of a firearm near a school? The Court has decided these issues throughout history, but Congress and the president must also consider these questions when making and enforcing laws.  

When making laws, members of Congress also represent their constituents’ interests, protect their constitutional liberties, and safeguard self-government. They also have a duty to “refine and enlarge” the views of their constituents and to rule for the common good. Sometimes, they may disagree with widely-held, passionate views of the moment as they deliberate on doing the right thing in particular circumstances.  

Members of Congress are meant to act with restraint and be faithful to the Constitution. This means creating laws that are within a reasonable understanding of the constitutionally enumerated and implied powers. Ruling for the common good and preserving the liberties of the people demands that they support the rule of law by acting justly and constitutionally.