Student Question
What is an example of an implied power for each branch of government and why does its exercise test their relationship?
Quick answer:
Implied powers are those not explicitly stated in the U.S. Constitution but necessary for government functions. For Congress, an example is the creation of the National Bank, justified by its power to regulate commerce. The Supreme Court's implied power is judicial review, established in Marbury v. Madison. The President's implied power is exemplified by the Louisiana Purchase, made under treaty powers. These powers often test inter-branch relationships by challenging constitutional boundaries and authority.
Implied powers are those governmental powers that are not explicitly enumerated in the U.S. Constitution. There have been contentious debates about implied powers from the beginning of the national government in 1791. An early debate over implied powers—over a proposed national bank—occurred during the presidency of George Washington.
At Washington's suggestion, Congress used its implied powers to charter the Bank of the United States in 1791. The national bank, the brainchild of Secretary of the Treasury Alexander Hamilton, was successful; and the Supreme Court ruled that its establishment was within the implied powers of Congress. But the Bank of the United States remained controversial.
The Supreme Court's most important implied power is its power of judicial review. Judicial review means that the Supreme Court decides whether or not a law is constitutional. Chief Justice John Marshall, a brilliant and forceful jurist, affirmed the Court's right to judicial review in an...
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important 1803 legal case.
President Thomas Jefferson used implied powers to purchase Louisiana from France in 1803. The Constitution does not give the presidency the right to buy land, but it does give the presidency the right to make treaties. Jefferson reluctantly went ahead with the purchase.
Arguments about implied powers continue in 2019—especially between the executive and legislative branches. For example, the scope of executive privilege is a point of contention between Congress and the Donald Trump White House.
What are implied powers? Give an example for each government branch: legislative, executive, judicial.
Constitutionally speaking, there is a distinction between the implied and enumerated powers of government. The enumerated powers are those that are specifically guaranteed and written into the US Constitution. The implied powers of government, on the other hand, are not actually written into the Constitution, but have been deemed necessary for the government to fulfill its proper functions. This distinction takes much of its force from the last section of article 1, section 8 of the US Constitution, which grants Congress the power
to 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.
The doctrine of implied powers covers a wide range of government actions. For example, the Supreme Court's power of judicial review can be understood as an implied power. There is nothing in the Constitution itself that grants the Court this power (it was first established in the case of Marbury v. Madison), but it has since become the most important power held by the Judicial Branch and one of the cornerstones within the US system of checks and balances.
Speaking of the other two branches, one of the earliest points of Constitutional contention surrounded Hamilton's plans for a National Bank. In a more modern context, you might look toward the creation of the Federal Reserve System or Social Security to find further examples of implied powers in action. Speaking specifically to the Executive Branch, you might also consider the use of executive orders, which allows the president to bypass the Constitutional lawmaking process altogether.
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