ArtI.S1.3.3 Enumerated, Implied, Resulting, and Inherent Powers

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Supreme Court has recognized four general categories of powers belonging to the National Government—enumerated, implied, resulting, and inherent. Enumerated powers are those specifically identified in the Constitution.1 In McCulloch v. Maryland, Chief Justice John Marshall recognized that the Constitution expressly provides the National Government with specific enumerated powers,2 stating:

This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted.3

Article I, Section 8, of the Constitution lists various powers that the States ceded to the National Government. These powers include the power to tax and spend, to borrow, and to regulate commerce. Article I, Section 8, however, is not an exclusive list of powers the Constitution expressly grants to the National Government or its constituent branches. For instance, Congress also has power to regulate the electoral process under Article I, Section 4,4 and the President has the power to veto legislation under Article I, Section 7.5

Implied powers are those powers necessary to effectuate powers enumerated in the Constitution.6 In other words, the Constitution’s enumeration of powers implies an additional grant of such powers that are necessary to effectuate them. In McCulloch v. Maryland, Chief Justice Marshall declared that the power conferred by the Necessary and Proper Clause7 embraces all legislative “means which are appropriate” to carry out the powers provided expressly by the Constitution.8 Chief Justice Marshall stated: “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 consist with the letter and spirit of the constitution, are constitutional.” 9 In his Commentaries on the Constitution of the United States, Justice Joseph Story discussed implied powers, noting that any analysis of whether a power is constitutional must first begin by determining whether the Constitution expressly provides for the power.10 If the Constitution does not expressly state (or enumerate) the power, the question then becomes if such a power is necessary to implement a power provided expressly by the Constitution.11

Chief Justice Marshall identified resulting powers as those “result[ing] from the whole mass of the powers of the National Government and from the nature of political society.” 12 In American Ins. Co. v. Canter, Chief Justice Marshall recognized that “the constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.” 13 From the power to acquire territory, Chief Justice Marshall reasoned, arises the right to govern it.14 In the Legal Tender Cases (Knox v. Lee), the Supreme Court clarified that the Constitution neither expressly grants resulting powers to Congress nor are they ancillary to an unenumerated power.15

A fourth category of power identified by the Supreme Court—inherent powers16 —appears to share some of the same characteristics of resulting powers. In United States v. Curtiss-Wright Export Corp., Justice George Sutherland described inherent powers as those that are independent of an authorizing power but are inherent to the government in its role as sovereign.17 Justice Sutherland emphasized that enumerated and implied powers pertain to those the States ceded to the National Government when the United States was formed,18 while inherent powers originated in the external sovereignty that Great Britain passed to the United States at the end of the American Revolution. Justice Sutherland wrote:

[S]ince the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but . . . were transmitted to the United States from some other source. . . . When . . . the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union. . . . The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality.19

Justice Sutherland emphasized the difference between domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter “virtually free of any restraint.” 20

Notwithstanding the doctrine of enumerated powers—the power to legislate by the “rights expressly given and duties expressly enjoined” by the Constitution21 —the Court has ascribed implied, resulting, and inherent powers to the National Government. Consequently, the United States, among other things, has power to impart to paper currency the quality of legal tender to pay debts;22 to acquire territory by discovery;23 to legislate for Indian tribes wherever situated in the United States;24 to exclude and deport aliens25 and to require that those who are admitted be registered and fingerprinted;26 and the powers of sovereignty to conduct foreign relations.27

Enumerated powers, Black’s Law Dictionary (6th ed. 1990) (defining enumerated or express powers to be “Powers expressly provided for in the Constitution” ). back
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819). See U.S. Const. art. I, § 8. back
McCulloch, 17 U.S. (4 Wheat.) at 405. back
U.S. Const. art. I, § 4, cl. 1. back
Id. art. I, § 7, cl. 2. back
Implied powers, Black’s Law Dictionary (6th ed. 1990) (defining implied powers to be “Such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant” ). back
U.S. Const. art. I, § 8, cl.18. back
McCulloch, 17 U.S. (4 Wheat.) at 421. back
Id. See also Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816) (Story, J.) ( “The government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.” ). back
3 Joseph Story, Commentaries on the Constitution of the United States § 1238 (1833). back
Id. back
Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 516 (1828); Resulting powers, Black’s Law Dictionary (6th ed. 1990). back
Am. Ins. Co., 26 U.S. (1 Pet.) 511. back
Id. See also 2 Story, supra note 10, § 1251 ( “[I]f the United States should make a conquest of any of the territories of its neighbors, the [N]ational [G]overnment would possess sovereign jurisdiction over the conquered territory. This would, perhaps, rather be a result from the whole mass of the powers of the [N]ational [G]overnment, and from the nature of political society, than a consequence or incident of the powers specially enumerated.” ). back
Legal Tender Cases (Knox v. Lee), 79 U.S. 457 (1870). back
Inherent powers, Black’s Law Dictionary (6th ed. 1990) (defining inherent powers as “authority possessed without it being derived from another” ; a “right, ability, or faculty of doing a thing, without receiving that right, ability, or faculty from another” ; “[p]owers originating from the nature of government or sovereignty, i.e., powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express grants” ). See also Robert J. Kaczorowski, Inherent National Sovereignty Constitutionalism: An Original Understanding of the U.S. Constitution, 101 Minn. L. Rev. 699 (2016). back
United States v. Curtiss-Wright Exp., 299 U.S. 304 (1936). back
Id. at 316–18. For early versions of this concept of the national government’s powers in the field of foreign relations, see Penhallow v. Doane 3 U.S. (3 Dall.) 54, 80, 81 (1795); Holmes v. Jennison, 14 U.S. (14 Pet.) 540, 575–76 (1840) (Taney, C.J.). back
Curtiss-Wright Exp. Corp., 299 U.S. at 316–18. back
Id. back
Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616, 618–19 (1842). back
Juilliard v. Greenman, 110 U.S. 421, 449–50 (1884). See also Knox v. Lee, 79 U.S. (12 Wall.) 457, 565 (1871) (Bradley, J., concurring). back
United States v. Jones, 109 U.S. 513 (1883). back
United States v. Kagama, 118 U.S. 375 (1886). back
Fong Yue Ting v. United States, 149 U.S. 698 (1893). back
Hines v. Davidowitz, 312 U.S. 52 (1941). back
United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936). back