Implied Powers

The U.S. Constitution (Article I, Section 8, Clause 18) grants to Congress the power to enact laws to carry out the “enumerated powers” (Clauses 1-17) that are specifically assigned to the federal government.

This clause became the center of controversy from the nation's early days when Alexander Hamilton and Thomas Jefferson tangled over the constitutionality of a national bank. Their arguments, in one form or another, persist today:

• The “loose constructionists” (the Hamiltonians or Federalists) viewed Clause 18 as an opportunity to increase federal power.

• The “strict constructionists” (the Jeffersonians or Anti-Federalists) believed that Clause 18 limited federal power. In their opinion, Congress could legitimately exercise only specified functions (Clauses 1-17); to do otherwise would be a violation of the Tenth Amendment, which specified that those powers not delegated to the federal government are reserved to the states or the people.

President George Washington sided with Hamilton and supported the establishment of the First Bank of the United States. The Federalist position regarding “implied powers” became part of the national fabric largely through the decisions of the U.S. Supreme Court under John Marshall.

Clause 18 is also known as the “elastic clause” or the “necessary and proper clause.”