Are Implied Powers Constitutional?

By Douglas V. Gibbs

The United States Constitution was written to establish a federal government to handle issues the States individually could not.  The States, who had original authority over all issues prior to the ratification of the United States Constitution, legally transferred some of their powers to the federal government so that it may function in the manner intended by the framers of the Constitution during convention in 1787.  The federal government were given express powers that are enumerated in the Constitution, but may not act upon any power not enumerated unless that action is necessary and proper to be used in order to carry out an expressly granted authority.  The powers given to the federal government were carefully chosen, limiting the central government to handling only external issues that concern the union of States, as well as conflicts between the States.  In return, the States would be tasked with administering issues that are internal, or specifically affecting to their own affairs.

In Federalist #45, James Madison explains that by design, as provided by the United States Constitution, "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

The concept of "Implied Powers," as defined by Alexander Hamilton during his argument for a national bank, was that "there are implied, as well as express powers [in the Constitution], and that the former are as effectually delegated as the latter. . . Implied powers are to be considered as delegated [to the federal government] equally with express ones."

Implied Powers are assumed authorities to the federal government, according to those that support the concept, that are not expressly enumerated, but are implied based on the interpretations of the Constitution by the political class, and judges.  We are even told as soon as we are old enough to study American History that it is the job of federal court justices to "interpret the law," which in turn leads to their authority to "interpret the Constitution."

The problem with the power of interpretation is that if you give an agency the authority to "interpret" something, their definitions will be more apt to reflect their own political ideology, than the letter of the law.

A living and breathing legal system changes at the whims of the electorate, politicians, and judges.  Cultural evolution can be used to manipulate the law, changing legal definitions without using the proper tools granted by the Constitution, such as the Article V. amendment process, to get the Constitution to mean whatever the power-brokers want it to mean.  The writers of the Constitution did not initiate a flimsy system that should change based on the whimsy desires of political opportunists.  The American form of government under the United States Constitution was designed to be a system based on a set standard, a written foundation with specific enumerated powers expressly granted to the federal government.  To allow the political elite to manipulate the Constitution based on their interpretations of the document through an unconstitutional concept they call "implied powers" is to go against the original intent of the document, and to establish a direct path to tyranny, and a loss of liberty in America.

Strict constructionism recognizes that the federal government was created to serve the States, not control them.  Supporters of the concept of Implied Powers suggests that the federal government can expand beyond those original restraints by simply following the opinion of a politician, or judge, regarding the constitutionality of a federal law, or action.  There are powers that lie beyond what is specifically enumerated, but those powers are not "implied powers," but instead find a direct connection to authorities expressly enumerated in the Constitution in Article I, Section 8, and any subsequent amendments.  Those powers are called, "Necessary and Proper."

Article I, Section 8, Clause 18, the "necessary and proper clause," reads: To make all law which shall be necessary and proper to carrying into execution the foregoing powers, and all other powers vested in this Constitution in the government of the United States, or in any department or officer thereof.

The language of this clause specifically establishes that only laws that may not be expressly granted as authorities, but are necessary and proper in order to carry into execution the foregoing powers, and all other powers vested in this Constitution, may be passed using this clause as their supporting authority.

Foregoing powers means "the powers expressly granted preceding this clause." All other powers vested in this Constitution means "any other powers granted by amendment."

Also notice the word "vested." Vested means "legally transferred." If the powers are legally transferred, they must be transferred from someplace. If you read Article I, Section 1 and the Tenth Amendment, it becomes apparent that the original possessors of the powers granted to the federal government is the States, therefore the laws must be in accordance with those powers granted, and any new powers must be obtained through the amendment process (Article V) which does not go into effect until the States ratify the request with a vote of three-quarters of the States.

Any laws passed by the federal government must be in line with their authorities from the Constitution itself.  If an authority is not specifically enumerated as a power of the federal government, it must be "necessary and proper" in order to carry out express powers granted.

As an example, in Article I, Section 8, the Constitution gives the federal government the authority to establish post offices.  A necessary and proper law or federal action to carry out that express power would be if Congress purchased the land needed for the location, hired the construction company to build the facility, and hired the personnel necessary to wrap up any construction, or post-construction needs.

The government uses the concept of "implied powers" to justify regulating companies like UPS, or Fed Ex, because they carry out services similar to that of the post office.  However, regulating those private companies is not necessary and proper in order to carry out U.S. Mail functions, nor is the government placing such restrictions on a private company for any reason enumerated in the Constitution.  Therefore, federal regulation over private parcel delivery corporations is unconstitutional.  The States, however, are not prohibited from setting rules regarding the movement of parcels within their boundaries, therefore, any regulation necessary regarding parcel delivery companies would need to be established by the States in which the companies operate.

Implied powers, therefore, are not constitutional, but necessary and proper laws legislated for the purpose of the federal government being able to carry out authorities expressly granted by the U.S. Constitution are.

-- Political Pistachio Conservative News and Commentary