Inherent Powers

• Author: Sotirios A. Barber
• Pages: 1370-1371

Page 1370

In theory the Constitution establishes the institutions of the national government and vests those institutions with their responsibilities. Such a government is one of delegated powers. Some of these powers are expressed, others are implied. But all powers of the government?expressed and implied?are delegated powers originating in deliberate acts of the sovereign people. This theory cannot successfully deny that the Constitution may in fact succumb to "necessity," or prove inadequate in contingencies beyond human foresight and control. Nor does it deny that the document's terms (like "due process" and "executive power") are open to construction in light of broader ideas and needs. It simply means that to be lawful, a move of the government must fall within a range permitted by arguable interpretations of constitutional language and tradition.

Constitutional theory can admit a notion of "inherent power" in a sense of IMPLIED POWER as in inherent powers of executive privilege and removal of certain administrative appointees. But constitutional theory cannot admit the doctrine of "inherent power" that finds governmental powers beyond those that have been delegated expressly or by implication on the argument that a government must have certain powers before it can be considered a real government. This strong sense of inherent power is the subject here.

A doctrine of inherent power is frequently asserted in connection with a right to national self-preservation, which, as an inherent power, would differ from implied powers, like an implied power of national defense. Looked upon as an implied but still delegated power, a power of national defense can be derived from such expressed constitutional provisions as authorizing Congress to raise, support, and govern military and naval forces, and to declare war. Questions about the scope of an implied power of national defense would have to be answered in ways that would retain its status as part of a greater whole. A constitutionally derived power of national defense would be consistent with the SEPARATION OF POWERS, individual rights, and other provisions, or arguable interpretations thereof. By contrast, inherent powers need not be consistent with other constitutional provisions; asserting them does not require the interpretive adjustments needed to make something fit into a greater whole. A power to suspend elections and declare a dictatorship during a foreign invasion...