After the problems with the Articles of Confederation, the delegates knew they needed to give Congress more power in the Constitution. But what powers exactly should Congress have? And should they all be listed out (enumerated), or left opened-ended so people could assume they were there (implied)? Let's take a look at what "enumerated" and "implied" powers mean and why they are included in the Constitution?
Enumerated and Implied Power: Definition
Enumerated and implied power refers to the authority that the Constitution gives the federal government and specifically Congress. Enumerated means something that is listed out one by one.
Enumerated powers are those that the Constitution specifically spells out for the federal government and Congress
Implied means something that is not said explicitly, but is suggested or assumed. In the context of the US government, the enumerated and implied powers are the powers that the Constitution either explicitly or implicitly gives to the federal government and Congress.
Implicit powers aren't explicitly given, but they are assumed based on the context of the Constitution.
A painting depicting the Constitutional Convention in 1787. Source: Wikimedia Commons, Author, Henry Hintermeister, PD-old-50-Expired
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:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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.
Under the 13th amendment, neither the state nor federal government has the power to allow slavery. The 15th and 19th amendments prohibit both the federal and state government from denying the right to vote based on race or gender.
A newspaper illustration depicting a celebration after the passage of the 13th amendment, which abolished slavery. Source: Wikimedia Commons author, Harpers Weekly, CC-PD-Mark
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.
One example of Congress using its implied powers under the Necessary and Proper Clause is in the creation of labor standards and a minimum wage. The Constitution doesn't say anything about giving Congress the power to make labor laws, but the Supreme Court has ruled that because of constitutional authority to regulate commerce and the implied powers clause, it is still constitutional.
The Supreme Court case McCulloch v Maryland from 1819 is one of the earliest and most famous examples of Congress using implied powers. Congress had decided to make a national bank to help control the currency that the state banks were issuing. Many states were unhappy with the federal government creating a bank that superseded their own. Maryland imposed a tax to try to push the bank out, but James McCulloch, a cashier at the federal bank in Baltimore, refused to pay the tax. The Supreme Court ruled that the federal government did have the authority to create a national bank. Because the federal government had the authority to create coin, they reasoned that creating a new bank was necessary to fulfil that power under the "necessary and proper" clause.
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.
Enumerated and Implied Power - Key takeaways
The Constitution gives Congress both enumerated and implied powers.
Enumerated powers are those that are specifically listed out in the Constitution. This includes the power to create and army, declare war, and regulated commerce.
Implied powers are those that are implicitly given. The "necessary and proper" clause has been used to argue that Congress has power over certain areas because they are necessary in order to fulfill the enumerated powers.
There are also inherent powers, prohibited powers, and powers that are reserved for the state government.
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