Implied Powers

AuthorWilliam W. Van Alstyne
Pages1344-1348

Page 1344

"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

Page 1345

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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT