Saturday, January 23, 2010

The U.S. Constitution - Lesson #3: Implied v. Expressed Powers

Before we go any further into the Constitution it is important that we draw a clear distinction between two different types of powers in the Constitution:  Expressed powers and implied powers.  I will be drawing upon these two terms a lot in the future of this blog so its best they be defined and appropriate examples given.

Expressed powers, sometimes called enumerated, are the powers expressly given to a government.  The job of our Constitution is to enumerate those powers and also list out the powers denied to the government.  The power to tax and spend is one of the most obvious and well known enumerated power of any government on the face of the earth.

The vast majority of the expressed powers of Congress can be found in Article I, Section 8.  But there are more powers granted to Congress that you can find within the body of the Constitution and its amendments.  Often times when an amendment is added there is a clause that states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article (Amendment 14)."  This is just simply stating that Congress can write the laws to make sure this happens.  It adds to their expressed powers.  I will not go into detail right now all the expressed powers of Congress, the President or the Supreme Court now, but that will be a huge aspect of future lessons on our Constitution.

Implied powers related specifically to the Legislative Branch (law making, i.e Congress), though all branches of have some form of implied powers.  The authorization for implied powers of Congress can be found in Article I, Section 8, Clause 18.  It states:
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 State, or in any department  or officer thereof.
Notice the language of this clause, it is very specific in how these implied power are to be enacted.  The laws passed by Congress under this clause must have their authority from the Constitution itself.  This is not the power to expand the power of Congress beyond what is in the Constitution.  This is the power to create laws to help them carry out the powers in this Constitution.  Here are a few examples.

Article I, Section 7 of the Constitution is the main part of the Constitution that deals with the legislative process of Congress.  If you read it none of the detail of how a law is passed are outlined in the clauses.  Only that both houses of Congress must concur with each other on any bill and that the President must sign said bill.  There is nothing in there about committees, subcommittees, conference committees, limits on debate, how a law will be introduced, or any other details.  Well those procedures were created out of the implied power of Congress.  To carry out the power of passing bills into laws the Congress need to pass rules explaining how to pass a law with which both houses concur.  This is also part of their procedural rules (Article I, Section 5, Clause 2) that they pass every two years.

Another big example I use most often with my students, is the postal powers given to Congress (Article I, Section 8, Clause 7).  The text reads as follows:  To establish Post Offices and Post Roads."  Congress and the government does over see the United States Postal Service, but its mostly left alone as a government corporation.  Technically under the implied powers of Congress this also means that Congress has the authority to regulate companies like FedEx, UPS, DHL, and other similar companies.  The reason being is that they carry post, or mail.  One could also reasonable imply that since almost roads in the United States carry post they also have the power to regulate these as well.  I will strech this example just a little bit further.  Since mail is often times also carried on airplanes then they have the authority, granted by this the implied power clause, to regulate air traffic as well.

This is also where the power of the military draft comes from; its an implied power of Congress to raise and maintain an Army and Navy.  

I hope those examples are enough for you to understand the differences between the expressed and implied powers in our U.S. Constitution.  These will be referenced a lot as we dive into the powers of the Constitution next week.  If you have any questions do not hesitate to email or comment on this blog or on Facebook (it gets posted there as well).

One last thing before I dismiss class.  I mentioned yesterday that I was thinking of moving my blog entirely to Facebook.  Please send me any thoughts you may have on the subject.

Questions?  Comments?  Concerns?  Well then... class dismissed.