Street Law, Inc. and The Supreme Court Historical Society present

Landmark Cases of the U.S. Supreme Court

Street Law /

Justifying the Implied Powers of the Federal Government

The authors of the U.S. Constitution wanted to replace the weak national government of the Articles of Confederation with a stronger central government. However, they were concerned about giving the new national government too much power. They tried to limit the strength of Congress by specifically listing the powers that Congress could have. But they recognized that they could not anticipate every power that Congress would need in future decades and centuries, so they ended the list of enumerated (specifically listed) powers with a special power to address this problem. Article I, Section 8, Clause 18 of the Constitution is often called the necessary and proper clause, or the elastic clause.

Article I, Section 8, Clause 18 of the U.S. Constitution"[The Congress shall have Power] . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Questions to Consider
  1. Does this clause give unlimited power to Congress to make laws? Support your answer with evidence from the clause. 
  2. Why do you think this clause is sometimes called the elastic clause? 
  3. After studying the distinction between strict constructionists and loose constructionists, how do you think each group would interpret the amount of power the clause gives Congress?

Can We Justify the Implied Powers of Congress?

According to the necessary and proper clause, Congress generally may assume additional powers not specifically listed in the Constitution, sometimes called implied powers, if there is a link to a power that is listed in the Constitution. For example, Congress may allocate money to test a missile-defense system (something not specifically listed in the Constitution) because Article I, Section 8, Clause 12 gives Congress the power to "raise and support Armies."

While this example may seem like an obvious extension of Congress's power, other powers that Congress has assumed over the years are not so obvious extensions of powers specifically listed in the Constitution. The exercise below gives you a list of implied powers of Congress. Beside each one, try to locate a clause in Article I, Section 8 of the Constitution that could justify Congress assuming that implied power. If you do not think there is justification in the Constitution for that power, write "no justification" in the space provided. Be prepared to back up your answers.

Example:  Congress gives licenses to broadcasters to play music on the radio.

Answer: Clause 3 may justify this activity. It gives Congress the power to regulate interstate commerce. Broadcasting is a business. Thus, it is commerce. Airwaves cross over state lines, so it involves interstate commerce.

  1. Congress sets a federal minimum wage. 
  2. Congress establishes the United States Air Force. 
  3. Congress establishes national parks. 
  4. Congress creates federal laws against pollution. 
  5. Congress makes laws regarding discrimination in employment. 
  6. Congress decides that televisions should have V-chips that enable parents to block certain shows. 
  7. Congress passes the Gun-Free School Zones Act prohibiting anyone from possessing a firearm in a school zone. 

< McCulloch v. Maryland