The Constitution delegates power to the three arms of government; the executive, legislature, and the judiciary. The powers can either be enumerated or implied. Enumerated powers are expressly listed in the constitution. On the other hand, the implied powers are not explicitly described in the constitution. The constitution delegates enumerated powers to the national government. For instance, Article one of the United States Constitution spells out 27 powers to the Congress. Section 8 of this article provides the Congress with among others, the power to coin currency, maintain national defense, collect revenue, fix measurements and weight standards, regulate commerce, and declare war. Similarly, the US Constitution delegates the president with the powers such as the issuance of pardons, being the Commander-in-Chief of the armed forces and signing treaties with other countries. Therefore, considering the definitions, there exist significant differences between the enumerated and implied powers.
Contrastingly, the constitution does not expressly outline the implied powers. Nonetheless, it reasonably suggests what these powers are about. For instance, Clause 18 of Article 1 Section 8 provides the United States Congress with the power to make laws that will enable them to undertake enumerated powers (the necessary and proper clause). Some of the implied powers of the Congress from the necessary and proper clause include the construction of dams and highway systems that connect different states. However, the constitution does not state or give power to the federal government to carry out such expensive investments of constructing interstate highway systems and dams. The Commerce Clause gives the Congress the power to regulate trade with other states, foreign nations, and the Indian tribes. In essence, this constitutional provision provides the congress with the implied power to construct adequate road network and infrastructure that will facilitate commerce.
Congress representatives predominantly consider the commercial clause as one of the most critical legislation that provides Congress with far-reaching enumerated powers. The interstate commerce entails movement of persons, animals, and commodities across states as well as all forms of transportation and communications. Therefore, despite the fact that commerce clause is enumerated in the constitution; it provides the Congress with the implied powers to prohibit racial discrimination.
One of the most memorable historical instances of implied powers emerged in 1791 when the United States Congress established the First Bank. The then president, George Washington asked Alexander Hamilton (the Treasury Secretary) to defend the move against the protestations of Edmund Randolph, James Madison, and Thomas Jefferson. Hamilton, while arguing classically under the guise of implied powers, stated that the sovereign duties bestowed on any government by the constitution implied that it (the U.S government) reserved the right to carry out this mandate using any power necessary. According to the arguments presented by Hamilton, the constitutional clauses; “necessary and proper” and the “general welfare” provided the document with the elasticity needed by the framers. As a result of the persuasive argument, the president signed the bill into law. A similar scenario arose in 1816 when John Marshall, the United States Chief Justice, cited Hamilton’s 1791 argument while determining the of the case of McCulloch v. Maryland in the U.S Supreme Court for implied powers to uphold a bill passed by the Congress to create another banking institution. In the case, Marshall argued that it was the responsibility of the Congress as implicitly provided for in the constitution to establish the bank.