International Encyclopedia of Public Policy and Administration - Vol. 2

By Jay M. Shafritz | Go to book overview

which are to remain in the State Governments are numerous and indefinite." In 1804, in the case of U.S. v. Fisher, the Supreme Court seemed to suggest that implied powers were highly restricted: "Under a constitution conferring specific powers, the power contended for must be granted, or it cannot be exercised." However, rapid changes in American society led to a number of new problems and situations, which resulted in a more expansive view of powers not enumerated in the Constitution.

The McCulloch case arose over the controversial National Bank, first approved in the 1790s. Although it was popular with the Federalists, the bank was despised by Democrats and many of the states. In 1818, the state of Maryland levied a tax of US$15,000 on the Baltimore branch of the National Bank. The officers of the bank refused to pay, and James McCulloch, the bank's cashier, was sued for payment. The state court upheld the tax, but the case was appealed to the United States Supreme Court. Daniel Webster represented the National Bank and, in oral arguments before the Court, made an eloquent defense of a broad interpretation of the powers of the national government. Chief Justice Marshall and the Court, sympathetic to Webster's arguments, ruled against the Maryland tax of the National Bank with a sweeping interpretation of the scope of implied powers.

The Court held that Congress had the authority to create a National Bank because of Article I, section 8 of the Constitution, which allowed the national government to take actions "necessary and proper" to carry out powers explicitly granted. The Court ruled that neither Maryland nor any other state had the authority to tax a creation of the federal government since it reflected the sovereign will of all of the people. Noting that "the power to tax is the power to destroy," the Court, in establishing broad implied powers (see Gunther 1969), established the supremacy of federal policy over state policy. Marshall's expansive views of implied powers expressed in 1819 is one of the most famous passages in United States history: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."

Implied powers of the United States government have been of critical importance in a number of policies and regulatory areas. One of the more wide-ranging interpretations concerns the power vested in Congress to regulate interstate commerce. As the economy industrialized in the last half of the nineteenth century, the enumerated power to regulate interstate commerce formed the basis of the implied power of the government to create bureaucracies and regulations to carry out this power. In 1887, Congress created the Interstate Commerce Commission ( ICC), the nation's first regulatory agency. The broad sweep of implied powers in relation to the commerce clause was demonstrated by the 1964 Civil Rights Act, which used that power to provide a constitutional means of guaranteeing open accommodation in hotels and restaurants in the South.

A related category of constitutional powers are the implied powers of each of the three branches of the United States government. Often referred to as inherent powers, they are related to the authority necessary to each branch's ability to carry out its enumerated responsibilities. Inherent powers of Congress, for example, include the power to hold hearing, conduct investigations, and subpoena witnesses. The power of executive privilege has been recognized by the Supreme Court as sometimes necessary for the president to carry out the functions of office. Alexander Hamilton first discussed the principle of inherent executive powers in essay number 74 of The Federalist Papers ( Rossiter 1961).

By the courts taking an expansive view of implied powers under the United States Constitution, they paved the way for the expansion of national government, its supremacy over the states, and its ability to adapt to a wide range of policy issues-from environmental protection to affirmative action-never envisioned by the Founders. Implied powers have diminished the need to amend the Constitution or to rewrite it every generation, as Thomas Jefferson and others envisioned. Some critics believe that the courts have gone too far in expanding the scope of implied powers, particularly with regard to state prerogatives. In discussing the implied powers under the commerce clause in a 1981 case, Justice William H. Rehnquist noted that "one of the greatest 'fictions' of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States of to the people" ( Hodel v. Virginia Surface Mining, 1981).

LANCE T. LELOUP


BIBLIOGRAPHY

Gunther, Gerald, ed., 1969. John Marshall's Defense of McCulloch v. Maryland. Stanford: Stanford University Press.

Peltason, J. W., 1973. Understanding the Constitution. Hinsdale, IL: Dryden Press.

Rossiter, Clinton L., 1961. The Federalist Papers; Alexander Hamilton, James Madison, John Jay. (espec. nos. 45, 74.) New York: New American Library.

IMPOUNDMENT. Any executive branch action to withhold or delay spending funds appropriated by a legislative body. There are two general categories or impoundments: deferrals and rescissions.

The budgeting process consists of four main phases. These are: (1) the executive branch budget formulation and the transmittal of the chief executive's budget recommendations to the legislative branch; (2) legislative action, including the hearing and appropriations process; (3) budget execution and control; and (4) budget assessment and evaluation by the appropriate body.

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International Encyclopedia of Public Policy and Administration - Vol. 2
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