"Loose and irresponsible use of adjectives colors … much legal discussion.… "Inherent' powers, "implied' powers, "incidental' powers are used, often interchangeably and without fixed ascertainable meanings." Justice robert h. jackson's remark in youngstown sheet & tube company v. sawyer (1952) was correct. The vocabulary of "implied powers" is frequently used indiscriminately with other terms. It is associated with not less than six quite different usages.
The original use of "implied powers" was to contrast, rather than to explain, the powers that would vest in the United States. The national government would not automatically possess all the customary attributes of sovereignty, but only those expressly provided. As to these, james madison declared (in the federalist #45): "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." Writing for a unanimous Supreme Court in 1804, Chief Justice john marshall, in United States v. Fisher, agreed that there were no implied-at-large national powers: "[I]t has been truly said, that under a constitution conferring specific powers, the power contended for must be granted, or it cannot be exercised." And more than a century later, Justice david brewer in Kansas v. Colorado (1907) confirmed the conventional wisdom: "[T]he proposition that there are legislative powers [not] expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers."
In this original sense, then, it may be said that the Constitution does not imply a government of general legislative, executive, and judicial powers; it establishes a government of limited, express, enumerated powers alone.
In 1936, in united states v. curtiss-wright export corporation, Justice george sutherland, inan obiter dictum for the Supreme Court, suggested that the national government need not rely upon any express power to sustain an assertion of executive authority prohibiting American companies from foreign trade which (in the President's view) might compromise the nation's neutral status at international law. Sutherland observed that the United States, as a nation within an international community of sovereign national states possessed "powers of external sovereignty" apart from any one or any combination of the Constitution's limited list of powers respecting foreign relations. Accordingly, Sutherland declared: "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs." Such an extraconstitutional power may informally be described as one derived from the status of being a sovereign nation or as implied by the fact of national sovereignty.
The soundness of this view has been seriously questioned, however, and in fact its acceptance has not been necessary to the outcome of any case. Rather, its principal positive law use has been as a reference in support of very broad interpretations of the several provisions in the Constitution which expressly enumerate executive and congressional powers respecting foreign affairs. It has also been relied upon to uphold extremely permissive delegations of power by Congress to permit the President to determine conditions of trade between American companies and foreign countries, or conditions of American travel and activity abroad.
Not inconsistent with the general view that any claim of implied-at-large national powers is precluded by the text and presuppositions of the Constitution, such specific powers as are conferred by the Constitution have been deemed to carry with them exceedingly wide-ranging implications. Partly this results merely from the doctrine of broad construction that every specific grant of power is to be deferentially interpreted, rather than narrowly construed. For instance, the power vested in Congress to "regulate" commerce among the several states might have been interpreted quite narrowly, in keeping with the principal objectives of enabling Congress to provide for a nationwide free trade zone, as against the tendency of some states to enact discriminatory taxes, and other self-favoring economic barriers. Instead, the power was construed in no such qualified fashion. The power to regulate commerce among the several states is "the power to prescribe the rule by which such commerce shall be governed," which therefore includes the power to limit or to forbid outright such commerce among the states as Congress sees fit to disallow. The result has been that to this extent, the express power to regulate commerce among the states gives to Congress a limited national police power.
Beyond adopting an attitude of permissive construction respecting each enumerated power, however, the Supreme Court took an additional significant step. It accepted the view that acts of Congress not themselves direct exercises of conferred powers would be deemed authorized by the Constitution if they facilitated the exercise of one or more express powers. An act of Congress establishing a national bank under a corporate charter granted by Congress, vesting authority in its directors to set up branch banks with general banking prerogatives, may arguably facilitate borrowing on the credit of the United States, paying debts incurred by the United States, regulating some aspects of commerce among states, and serving as a place of deposit for funds to meet military payrolls. Each of these uses is itself identified as an express, enumerated power vested in Congress although the act establishing such an incorporated national bank may itself not be regarded as legislation that borrows money, pays debts, etc. Nevertheless, insofar as provision for such a bank might usefully serve as an instrument by means of which several expressly enumerated powers could be carried into execution, the Supreme Court unanimously concluded that the congressional power to furnish such a bank was "implied" "incidentally" in those enumerated powers. The opinion by Chief Justice Marshall in mcculloch v. maryland (1819) is crowded with the repeated use of both terms. In tandem with the principle of generous construction, this view of "implied" incidental powers has had a profound influence in assuring to Congress an immense latitude of legislative discretion despite the conventional wisdom that the national government is one of specific, enumerated powers alone. Laws not probably within even a latitudinarian construction of specific grants of power, but nonetheless instrumentally relatable to such grants, are thus deemed to be adequately "implied" by those grants as incidents of grants.
A contemporary example is furnished by wickard v. filburn (1942). Though some of the "commerce" regulated by the act upheld in that case was not commerce at all (because it was not offered for trade, but was used solely for the farmer's personal consumption), and although the activity regulated was entirely local (growing and consuming wheat on one's own farm), insofar as the regulation of these local matters was nonetheless instrumentally relatable to an act fixing the volume of wheat permitted to be grown for purposes of interstate sale, the power to include local growing and consumption, as part of the larger regulation, was deemed to be implied by the express power to regulate commerce among the several states. The imaginative capacity of Congress to relate the aggregate interstate effects of local activity, thus bringing it within a uniform and integrated national economic policy, has made the principle of incidental implied power at least as important as the principle of broad construction in respect to enumerated national power. Indeed, the combination of the two doctrines has led Justice william h. rehnquist, in hodel v. virginia surface mining (1981), to suggest: "It is illuminating for purposes of reflection, if not for argument, to note that one of the greatest "fictions" of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the commerce clause amply illustrates the extent of this fiction." However that may be, the notion that express powers imply an authority to undertake action instrumentally relatable to the use of those powers, albeit action not itself an exercise of any express power, has given to the national government a flexibility and discretion that it would not otherwise possess.
The bank case (McCulloch) and the wheat quota case (Wickard) are examples of implied powers incidental to specific enumerated powers. Each involved acts of Congress establishing an enterprise or furnishing a regulation instrumentally related to one or another express power. Different from this kind of "incidental implied power," but resting on much the same sort of constitutional justification, are implied powers common to each of the three branches of the national government. These powers, sometimes called inherent powers, are deemed to be implied as reasonably necessary to each department's capacity to discharge effectively its enumerated responsibilities. Because they are regarded as effecting that capacity generally (and not merely in respect to one or another specific enumerated power alone), however, they are generically implied, incidental powers.
A prominent example is the unenumerated (but implied) power of each house of Congress to hold legislative hearings, to subpoena witnesses, and otherwise to compel the submission of information thought useful in determining whether acts of Congress on particular subjects need to be adopted, repealed, or modified. The power to conduct legislative investigations, nowhere expressly conferred, is deemed to be implied as a reasonable incident of the legislative function. Similarly, a power of federal courts to maintain order in adjudicative proceedings, independent of any act of Congress providing such a power (pursuant to the necessary and proper clause), rests on the same ground. And although never challenged, presumably the power of the Supreme Court to exclude all but its own members from its private conferences in which discussion is held and votes are taken on pending cases is an example.
A qualified power of executive privilege, enabling the President to interdict discovery of advice, memoranda, and other internal executive communications is conceded by the Supreme Court to be implied as an incident of executive necessity and power. The principle common to these several examples was illustrated in a remark by alexander hamilton, in The Federalist #74, commenting briefly upon the express power vested in the President by Article II, authorizing the President to "require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices." As to this express provision, Hamilton suggested, "I consider [it] a mere redundancy in the plan; as the right for which it provides would result of itself from the office." And so, undoubtedly, it would, especially as the Supreme Court was subsequently to hold that the President has an implied power to dismiss any executive subordinate at will, though no express clause so provides, and the clause respecting appointment of such officers requires the consent of the Senate.
One may phrase the matter variously, as power "resulting" from the establishment of the executive, legislative, and judicial branches, or as powers "incidental" to their designated powers. The point is the same: instrumental powers deemed reasonably necessary generally to each department's independent capacity to exercise its express, vested powers are treated as generically implied by Articles I, II, and III.
As noted in McCulloch an act of Congress establishing a national bank in corporate form may be useful as a means of carrying into execution the several specific fiscal powers of the United States. Equally, a regulation of local commerce may be necessary to keep a regulation of interstate commerce from frustration. In either case the Court has upheld such exercise of congressional power when instrumentally relatable to the exercise of an express, enumerated power. In neither case, however, is it necessary in fact to describe the power to adopt such instrumentally relatable laws as "implied" power. Rather, all such laws are themselves specifically and expressly authorized by an enumerated grant of enabling power vested in Congress: "Congress shall have power to make all laws necessary and proper to carry into execution the foregoing powers, and all other powers vested in the government of the United States or any officer or department thereof." This clause, located at the end of the enumerated powers of Congress in Article I, section 8, is known as the "necessary and proper" clause. Originally, in anticipation of its elasticizing effects, it was known as "the sweeping clause," vesting in Congress discretion to carry into effect its own enumerated powers, and those of the executive and judiciary as well, by means of its own choosing. Consistent with that background, and consistent also with the general doctrine of generous (or loose) construction, the sweeping clause has been construed by the Supreme Court very liberally: "necessary and proper" are regarded as synonymous with "reasonable." Thus, whatever acts of Congress may reasonably relate to a regulation of commerce among the several states are authorized by this clause. Likewise, whatever acts of Congress may reasonably relate to the conduct of the judicial power of the united states, or the conduct of the executive powers (as described in Article II), as an aid to those departments to carry into execution the executive or judicial powers, are authorized by this clause.
Because of this interpretation of the sweeping clause, it is not clear why the Supreme Court developed the notion of incidental implied powers. From one point of view, the latter doctrine is both redundant, because it duplicates a power already provided in the Constitution, and illogical because insofar as there is a clause expressly providing for such an instrumental power vested in Congress, to speak of such a power as "implied" rather than as "express" makes little sense. Had there been no necessary and proper clause, the innovation of a doctrine of implied power, incidental to enumerated powers, might be rested on the felt necessity of rendering the national government equal to ultimate growth and needs of the nation. But insofar as the necessary and proper clause was itself construed to provide for such flexibility, no need remained to be filled by the additional innovation of "implied, incidental" power. The doctrine of generous construction (respecting the scope of enumerated power) and the necessary and proper clause (itself generously construed), would in combination grant a vast instrumental latitude to Congress in respect both to its own powers and to those of the executive and the judiciary.
One consequence of this partial redundancy is that there is no particular consistency in the pattern of Supreme Court decisions respecting unsuccessfully challenged acts of Congress. Sometimes they are sustained as but implied incidents of one or more enumerated substantive powers. And sometimes, as happened in McCulloch, they are sustained on both grounds at the same time.
Were it not for a related problem, the question whether an exertion of national power not within an express enumerated power (but nonetheless instrumentally relatable to such a power) properly rests on the necessary and proper clause, or instead merely represents an implied power instrumentally incidental to an express power, would be merely academic. But, unfortunately, it is not always so. The necessary and proper clause vests its power in Congress. It implies, by doing so, that if Congress believes it appropriate to facilitate the executive and judicial enumerated powers, it may do so by enacting legislation helpful, albeit not indispensable, to those departments. Merely "helpful" instrumental powers assertable by the executive or by the judiciary will depend, therefore, on whether Congress has, by law, acting pursuant to the necessary and proper clause, provided for them. Correspondingly, the absence of any such act of Congress providing for such incidental executive or judicial powers would be a sufficient basis for a successful challenge to any such unaided assertions of executive or judicial power.
On the other hand, if the mere enumeration of executive and judicial powers (in Articles II and III) are themselves deemed to imply incidentally helpful (but not indispensable) ancillary powers, then the absence of a supportive act of Congress is not fatal to such claims. Thus, in this instance, it does make a difference to resolve the relationship between the necessary and proper clause (addressed solely to what Congress may provide) and the doctrine of implied, incidental powers.
Interestingly, two centuries into the positive law history of the Constitution, this particular question has not been addressed by the Supreme Court. Rather, an uneasy accommodation has been made. Each department of government has been regarded by the Court as possessing a range of incidental powers implied by its express powers, and such assertions of authority have been generally upheld. Nonetheless, insofar as Congress has legislated affirmatively, and by statute has found that such an assertion of incidental executive (or judicial) authority is not necessary or proper, the tendency of the Supreme Court is to defer to the authoritative judgment of Congress and, correspondingly, rule against the assertion of "implied" incidental executive power.
The pragmatic accommodation of the doctrine of implied incidental powers and the necessary and proper clause, therefore, has been to treat Congress as primus inter pares. Each department of the national government has separate enumerated powers of its own, not subject to abridgment by either of the other two departments. In addition, each may assert implied incidental powers, instrumentally relatable to its enumerated powers albeit not literally within those enumerated powers as even generously construed. But a specific determination by Congress with respect to this latter class of powers is regarded as virtually conclusive of the subject. If the act of Congress confirms such power, it is virtually certain to be sustained. If the act of Congress either expressly or implicitly denies the appropriateness of such incidental executive or judicial power, then that determination also is likely to govern. The case best known for this view is Youngstown Sheet & Tube Co. v. Sawyer.
The Constitution enumerates express war powers and express powers enabling Congress to insure each state against domestic violence. Curiously, however, it has no express clauses directed to the internal security of the national government. Nevertheless, the authority to provide for laws punishing attempts of violent overthrow has been sustained as an implied power of self-preservation. Depending upon how deeply such laws may affect certain freedoms to criticize the government or to bring about fundamental changes in its composition by peaceful means, these acts of Congress may be vulnerable to challenge under the first amendment or other provisions of the Constitution. Nevertheless, a considerable implied power of self-preservation is deemed to vest in Congress, essentially on the common-sense inference that its express enumerated powers imply a residual existence of the government possessing those powers and thus, of necessity, a power of self-preservation. The Sedition Act of 1798 (see alien and sedition acts) was sustained in the lower federal courts partly on this rationale.
Less frequently drawn into litigation, but presumably resting on similar grounds, is the implied power of Congress to provide for incidents of national status. The adoption of a national flag rests on no particular enumerated power. Rather, like other acts of Congress identifying symbols of national status, it is but an implied incident of an expressly established government—of the United States of America.
In sum, the phrase "implied powers" houses a half-dozen quite discrete meanings. They are bound together by but one common element, namely the obviousness of contrast with express powers. Beyond that, however, they speak to distinct (and not always completely reconcilable) propositions. One is an implied residual sovereign power of national self-preservation and the incidental power to adopt ordinary insignia of nationhood. In addition, there are implied powers peculiar to each of the three branches of the national government, incidental to the exercise of all enumerated powers expressly vested in each branch. Such generic implied powers apart, there are also implied cognate powers incidental to each expressly enumerated power, extending the reach of those enumerated powers even beyond what might otherwise be their scope under a doctrine of loose or generous construction. Then, too, although the usage seems inept in reference to an enumerated general enabling power, the necessary and proper clause of the Constitution has often been used to anchor the textual source of extensive, instrumental powers. And last, there is also the claim of implied, extraconstitutional power in respect to the external sovereign relations of the United States, standing over and apart from the several enumerations of power provided by the Constitution.
The solidness of the foundations respecting these several varieties of implied powers are not all of a piece, that is, quite plainly they are not all of equally convincing legitimacy. Rather, they but illustrate in still one more way how two centuries of history have operated to show what has followed from Chief Justice Marshall's observation that it is a Constitution we are expounding.
William W. Van a lstyne
Henkin, Louis 1972 Foreign Affairs and the Constitution. St. Paul, Minn.: West Publishing Co.
Van Alstyne, William W. 1976 The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: The Horizontal Effect of the Sweeping Clause. Law & Contemporary Problems 1976:102–134.