1Implied PowersThe Elastic Clause, McCulloch,and the Expansion of FederalPower2Key Features1. Popular Sovereignty2. National Supremacy3. Limited Government4. Federalism5. Bicamerlism6. Separation of Powers 7. Checks and Balances 8. Implied Powers9. Amendment Process10. Judicial Review/Political Parties??This lecture will focus on #8, implied powers.3Enumerated Powers• Article I, Section 8:– Lists specific powers of Congress, a rathershort list enumerating about 15 things,including:• Tax• Coin Money• Regulate Interstate Trade• Declare War• Etc.Enumerated powers are those specifically listed in Section 8 of Article I on theConstitution.4Implied Powers• The last clause of Section 8:• States:– Congress may pass any law that …….In the back of your text, note specifically what the last clause of Section 8 says.What do you think this means and why was it included?5Implied Powers• The last clause of Section 8:• States:– Congress may pass any law “necessaryand proper” to “carrying out itsforegoing powers”.In case you were too lazy to look in the back of your book - you can see thekey wording of the clause above.The “foregoing” powers are all those listed in the clauses above the “necessaryand proper“ clause.The framers wanted to make sure Congress had the power to carry out theother powers they specifically gave it; this was the main reason for the clause.However, its wording led to a major debate over how broadly these wordswere meant to be interpreted.6What does “necessary andproper” mean?• Hiring and paying post officeemployees?• Requiring safety warnings on packs ofcigarettes?Congress has the specific power to create a post office. Passing a bill whichwould allow for hiring a certain number of postal workers at a certain wagewould certainly seem necessary and proper to carry out this power.Yet, Congress has passed all sorts of laws that do not seem so connected to thepowers enumerated the Constitution. For example, Congress passed a lawrequiring companies to put labels on packs of cigarettes that tell you thatsmoking causes cancer. Which of the “foregoing” powers could this possiblerelate to? (Check them out and see if there is one that makes sense to you.)7What does “necessary andproper” mean?• Hiring and paying post officeemployees?– “To create and maintain a post office.”• Requiring safety warnings on packs ofcigarettes?– “To regulate interstate trade.”The law is ultimately based on Congress’ right to regulate interstate trade.Interstate trade is trade BETWEEN the sates. The framers gave this powerexclusively to Congress; thus preventing California, for example, from taxingdelicious oranges coming from Florida. However, the power to regulateinterstate trade has expanded to included almost unlimited regulation of theeconomy (since most everything is traded across state lines). Thus we havelaws restricting the manufacture and sale of firearms, a federal minimum wage,a host of environmental regulations, as well as health regulations such as thewarning labels on cigarettes. All of these have are considered Constitutionalbecause they have been regarded as “necessary and proper” to the power ofregulating interstate trade.If you are asking yourself if it is really “necessary” to put labels on cigarettes,rather than just a good idea then you are thinking like Thomas Jefferson. Justbecause something is a “good idea” does not make it constitutional. You mightask what’s more important, living in a nation of good ideas or a nation underthe laws?8Jefferson• Proponent of limited government• “The Constitution allows only thosemeans which are absolutely‘necessary’, not those which are merely‘convenient’.”• This is referred as a “strict” or “narrow”view of constitutional powers.Thomas Jefferson, a true Lockean, believed in small (limited) governmentfearing that powerful government would simply serve powerful interests andnot the common man, whose voice was likely to be less strong. He thus,argued for what was called a “narrow” interpretation of the necessary andproper clause. Necessary means really necessary - as in I “need” oxygen tosurvive.The words in BLUE above are quoted from what Jefferson wrote in anargument he had with Alexander Hamilton over the constitutionality ofCongress creating a national bank. Jefferson believed Congress had exceededits authority.9Hamilton• Proponent of a strong centralgovernment.• “Necessary often means no more thanneedful, requisite, incidental, useful, orconducive to.”• This is referred to as a “broad” or“loose” interpretation of thegovernmental power.The words in BLUE are from Hamilton’s retort to Jefferson.Jefferson’s political opponent Alexander Hamilton (who was Secretary of theTreasury under Washington, though too controversial to ever become presidentas did Jefferson) was a major proponent of strong government believing it wasnecessary for the creation of a powerful nation with a strong economy.He thus argued for a “loose” interpretation of the the elastic clause.“Necessary” doesn’t always mean necessary, he argued. For example, I mightsay I “need” a snack or a break but it doesn’t mean I will die if I don’t have abowl of ice cream, only that it would quite nice.10So, Who is Right?Who gets to settle an argument like this?11The Supreme Court Steps In• Eventually this debate is settled by theSupreme Court when a case relevant tothe “necessary and proper clause”comes before it.Of course, in our system of separation of powers, it is the Judiciary that gets tointerpret the meaning of laws. Eventually a case concerning theconstitutionality of a National Bank chartered by the government made its wayto the Supreme Court. …12The Fight over the NationalBankLeads to McCulloch v. Maryland1819… in the famous case of McCulloch v. Maryland.13Background: The Fight overthe National Bank• Congress Creates a National Bank in 1816• Hamilton supports the idea of the bank,believing it is constitutional andessential for the country’s economicdevelopment.• Jefferson sees it as unconstitutional andfears it would primarily benefit wealthyNew Englanders.To understand the case, you need this background:During the first session of Congress, a law was passed that allowed Congressto charter a national bank that would store all government revues and makecommercial loans, primarily