Enumerated and Implied Power

Enumerated and Implied Power Meaning

Now that we know the literal meaning of "enumerated" and "implied," let's look at what these concepts meant when the Constitution was written.

Limited Government

Understanding the concept of limited government is important for understanding why the framers wanted to ensure that the Constitution clarified the enumerated and implied powers of Congress.

The idea of limited government became very popular during the Enlightenment in the 17th and 18th centuries. It came out of several centuries of monarchical rule where the king or queen could have as much power as they wanted. There wasn't a mechanism for the people or public officials to constrain the power of the monarch. So if the ruler became a tyrant or mistreated their citizens, there wasn't much they could do unless they wanted to go as far as a full-blown revolution.

"Limited government" means that the government isn't all-powerful - it can't just do whatever it wants. There are specific constraints on the government's power and consequences if any public official or government institution violates those restrictions. The powers that the Constitution does give Congress are just as important as the powers it DOESN'T give. We'll take a look at some prohibited powers below.

Articles of Confederation

Before the Constitution, the first framework for the US government was the Articles of Confederation. The Articles were very focused on limited government. Each state was used to running its own government and affairs. When it was time to come together as a new country, they didn't want to risk creating a government that was too powerful or abusive, like the British government had been. The Articles of Confederation gave very little power to the federal government and reserved most of the power for the states.

The first page of the Articles of Confederation. Source: Wikimedia Commons, Author, Alexander Purdie, PD-US

Federalism vs. Antifederalism

The Articles of Confederation had some serious flaws that mostly came back to not having a central government that was strong enough to govern or unite the country. When the states came together for the Constitutional Convention in 1787 to develop the Constitution the issue of a strong central government (federalism) vs. a weak central government and strong state governments (antifederalism) was extremely important.

The issue of federalism vs. antifederalism also comes through in the enumerated and implied powers in the Constitution. The delegates at the Constitutional Convention wanted to make it clear that the federal government had an important role, but that its power wasn't unlimited.

Enumerated and Implied Power Differences

The difference between enumerated power and implied power is seen in whether the Constitution explicitly gives the federal government a specific power. We'll see below a list of the enumerated powers. The implied powers are a little more tricky - they aren't spelt out, but we assume that the federal government has them.

Other Powers

Beyond enumerated and implied powers, there are a few other types of powers that are important to understand in the Constitution.

Inherent

Inherent powers are those that are assumed for every country, so it isn't necessary to spell them out in the Constitution. For example, every sovereign country is entitled to protect its borders from invaders and to make decisions about immigration.

Reserved

Reserved powers are those that are reserved for state governments. The 10th amendment (the last amendment in the Bill of Rights) clarifies that:

This means that any power not given to the federal government is instead exercised by the state government. This includes things like managing schools, maintaining the justice system, and running elections.

Prohibited

Prohibited powers are those that the federal and/or state government are not allowed to use. For example, the federal government isn't allowed to violate the Bill of Rights or change state boundaries. States aren't allowed to enter into treaties with other countries or print money.

Concurrent Powers

Concurrent powers are powers that both the state and federal governments have at the same time. For example, both the state and federal governments have power over things like infrastructure and human services.

Enumerated and Implied Power Examples

Article 1, Section 8 of the Constitution spells out the enumerated powers of the legislative Branch. Below is an overview of these powers. Most of the phrases start with "Congress shall have power to..."

• Collect Taxes, Duties, Imposts and Excises
• Pay the Debts
• Provide for the common Defense and general Welfare of the United States
• Regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
• Establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States
• Coin Money
• Establish Post Offices and Post Roads
• Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
• Constitute Tribunal to the Supreme Court
• Define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations
• Declare War
• Raise and support Armies
• Provide and maintain a Navy;
• Provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• 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.

The Necessary and Proper/ Elastic Clause

The last phrase of Article 1, Section 8 is called the "Necessary and Proper Clause" or the "Elastic Clause." This clause is what gives Congress its implied rights. According to the clause, Congress has the power to make laws that are "necessary and proper for carrying into Execution the foregoing Powers." This means that if Congress needs to pass a new law in order to use one of their enumerated powers, they have the authority to do so.

Enumerated and Implied Power of Congress

The framers seemed to lean to the side of giving Congress only the powers that were enumerated in the Constitution. However, over time, events like the Civil War led to a shift towards Congress having all powers unless expressly forbidden. As a result of the Civil War, the federal government asserted more influence over state governments than before, which shifted the understanding to assuming that the federal government has the power unless it's explicitly prohibited in the Constitution.