Expressed Powers Are Those That Are

Expressed powers are the bedrock of limited government, delineating the specific authorities granted to each branch, particularly the legislative and executive, within a written constitution. Understanding these powers is crucial for comprehending the balance of power and the limits of governmental action.

Defining Expressed Powers

Expressed powers, also known as enumerated powers, are those explicitly listed in a constitution, giving specific authority to a particular branch of government. In the United States, Article I, Section 8 of the Constitution meticulously lists the powers granted to Congress, while Article II outlines the powers vested in the President. These powers are not implied or inferred; they are clearly stated, leaving little room for ambiguity.

The Significance of Enumeration

The decision to enumerate specific powers was a deliberate choice made by the framers of the U.S. Constitution. Having experienced the overreach of a powerful central government under British rule, they sought to create a system where the powers of the federal government were clearly defined and limited. Enumeration served several key purposes:

• Limiting Government Authority: By explicitly stating what the government could do, the framers implicitly defined what it could not do. This principle of limited government ensured that individual liberties were protected from arbitrary government intrusion.
• Providing Clarity and Predictability: Enumeration provides a clear framework for governmental action. Citizens and government officials alike can refer to the Constitution to determine whether a particular action is within the scope of the government's authority.
• Establishing a Foundation for Federalism: The enumeration of powers to the federal government also implicitly reserves all other powers to the states or the people, as stated in the Tenth Amendment. This division of power is a cornerstone of American federalism.
• Guiding Interpretation: The specific listing of powers provides a guide for interpreting the Constitution. When questions arise about the scope of governmental authority, the courts can look to the expressed powers as a starting point.

Examples of Expressed Powers

The U.S. Constitution provides numerous examples of expressed powers granted to the federal government. Here are some key examples:

Congressional Powers (Article I, Section 8)

• Power to Tax and Spend: Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States. This power is the foundation for the federal government's ability to fund its operations and programs.
• Power to Borrow Money: Congress can borrow money on the credit of the United States. This allows the government to finance projects or address emergencies when tax revenues are insufficient.
• Power to Regulate Commerce: Congress has the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. This "Commerce Clause" has been interpreted broadly over time, giving Congress significant power to regulate economic activity.
• Power to Establish Rules of Naturalization: Congress has the power to establish a uniform rule of naturalization, determining how immigrants can become citizens of the United States.
• Power to Coin Money: Congress has the power to coin money, regulate its value, and of foreign coin, and fix the standard of weights and measures. This power ensures a stable and uniform monetary system.
• Power to Establish Post Offices and Post Roads: Congress has the power to establish post offices and post roads, facilitating communication and transportation across the country.
• Power to Declare War: Congress has the sole power to declare war. This power is a critical check on the executive branch's ability to engage in military conflict.
• Power to Raise and Support Armies: Congress has the power to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years. This ensures civilian control over the military.
• Power to Provide and Maintain a Navy: Congress has the power to provide and maintain a navy.
• Power to Make Rules for the Government and Regulation of the Land and Naval Forces: Congress has the power to make rules for the government and regulation of the land and naval forces.
• Power to Provide for Calling Forth the Militia: Congress has the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.
• Power to Exercise Exclusive Legislation: Congress has the power to exercise exclusive legislation in all cases whatsoever over the District of Columbia and over places purchased with the consent of the legislature of the state for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.
• Power to Make All Laws Necessary and Proper: Congress has 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. This "Necessary and Proper Clause" (also known as the "Elastic Clause") has been a source of considerable debate over the scope of congressional power.

Presidential Powers (Article II)

• Commander-in-Chief: The President is the Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States. This power gives the President supreme command over the military.
• Power to Grant Pardons: The President has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This power allows the President to temper justice with mercy.
• Power to Make Treaties: The President has the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. This power allows the President to conduct foreign policy through agreements with other nations.
• Power to Appoint Ambassadors and Other Officers: The President nominates, and by and with the advice and consent of the Senate, appoints ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise provided for. This power allows the President to staff the executive branch and the judiciary with qualified individuals.
• Power to Fill Vacancies: The President has the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
• Power to Give Information to Congress: The President shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.
• Power to Receive Ambassadors: The President shall receive ambassadors and other public ministers. This power signifies the President's role as the chief representative of the United States in its relations with other nations.
• Power to Execute the Laws: The President shall take care that the laws be faithfully executed. This is perhaps the most fundamental of the President's powers, ensuring that the laws passed by Congress are carried out.

Expressed vs. Implied Powers

While expressed powers are explicitly stated in the Constitution, implied powers are those that are not specifically listed but are inferred as necessary to carry out the expressed powers. The Necessary and Proper Clause is the basis for implied powers.

The Necessary and Proper Clause

The Necessary and Proper Clause grants Congress the power to make all laws "necessary and proper" for carrying into execution its enumerated powers. This clause has been the source of considerable debate and judicial interpretation.

• Broad vs. Narrow Interpretation: Some argue for a broad interpretation of the Necessary and Proper Clause, allowing Congress to exercise a wide range of powers that are reasonably related to its enumerated powers. Others argue for a narrow interpretation, limiting Congress to only those powers that are absolutely essential to carrying out its enumerated powers.
• McCulloch v. Maryland (1819): The Supreme Court case McCulloch v. Maryland is a landmark decision that established the principle of implied powers. The Court held that Congress had the power to create a national bank, even though that power is not explicitly listed in the Constitution, because it was necessary and proper for carrying out Congress's enumerated powers, such as the power to tax, borrow money, and regulate commerce.

Examples of Implied Powers

• Creating a National Bank: As established in McCulloch v. Maryland, Congress has the implied power to create a national bank to regulate the economy, even though the Constitution does not explicitly grant that power.
• Establishing the IRS: Congress has the implied power to establish the Internal Revenue Service (IRS) to collect taxes, even though the Constitution does not explicitly grant that power.
• Regulating Workplace Safety: Congress has the implied power to regulate workplace safety under the Commerce Clause, even though the Constitution does not explicitly grant that power.
• Establishing a National Park System: While the Constitution doesn't mention national parks, the power to manage federal lands and promote the general welfare has been interpreted to allow Congress to establish and maintain a national park system.

The Tension Between Expressed and Implied Powers

The distinction between expressed and implied powers is not always clear-cut, and the interpretation of the Necessary and Proper Clause has been a constant source of tension in American politics.

• Federalism and States' Rights: Those who advocate for a narrow interpretation of implied powers often do so in the name of federalism and states' rights. They argue that expanding the scope of federal power through implied powers infringes on the powers reserved to the states by the Tenth Amendment.
• Evolving Needs of Society: Others argue that a broad interpretation of implied powers is necessary to adapt to the evolving needs of society. They argue that the Constitution should be interpreted as a living document that can be applied to new situations and challenges.
• Judicial Review: The Supreme Court plays a critical role in resolving disputes over the scope of implied powers. Through its power of judicial review, the Court can determine whether a particular law or action is within the scope of Congress's or the President's authority.

Limitations on Expressed Powers

While the Constitution grants specific powers to the federal government, it also places limitations on those powers to protect individual liberties and prevent government overreach. These limitations can be found in the Bill of Rights and other provisions of the Constitution.

The Bill of Rights

The Bill of Rights, comprising the first ten amendments to the Constitution, guarantees fundamental rights and freedoms to all citizens. These rights limit the power of the government and protect individuals from government intrusion.

• First Amendment: Guarantees freedom of speech, religion, the press, assembly, and the right to petition the government.
• Fourth Amendment: Protects against unreasonable searches and seizures.
• Fifth Amendment: Guarantees due process of law, protects against self-incrimination, and prohibits double jeopardy.
• Sixth Amendment: Guarantees the right to a speedy and public trial, the right to counsel, and the right to confront witnesses.
• Eighth Amendment: Prohibits cruel and unusual punishment.

Other Constitutional Limitations

In addition to the Bill of Rights, other provisions of the Constitution place limitations on the expressed powers of the government.

• Separation of Powers: The Constitution divides power among the legislative, executive, and judicial branches of government. This separation of powers prevents any one branch from becoming too powerful.
• Checks and Balances: The Constitution also establishes a system of checks and balances, allowing each branch of government to limit the power of the other branches. For example, the President can veto legislation passed by Congress, but Congress can override the veto with a two-thirds vote. The Supreme Court can declare laws passed by Congress or the President unconstitutional.
• Federalism: The Constitution divides power between the federal government and the states. This division of power, known as federalism, limits the power of the federal government and protects the autonomy of the states.

The Role of the Courts

The courts, particularly the Supreme Court, play a crucial role in interpreting the Constitution and determining the scope of governmental power. Through its power of judicial review, the Supreme Court can strike down laws or actions that it deems to be unconstitutional.

• Marbury v. Madison (1803): The Supreme Court case Marbury v. Madison established the principle of judicial review, giving the Court the power to declare laws unconstitutional. This power is a critical check on the legislative and executive branches.
• Ongoing Interpretation: The Supreme Court's interpretation of the Constitution is not static. The Court's decisions evolve over time as societal values and understandings change. This ongoing interpretation ensures that the Constitution remains relevant and adaptable to the challenges of modern society.

The Enduring Relevance of Expressed Powers

Expressed powers remain a cornerstone of constitutional law and American governance. They provide a framework for understanding the division of power between the federal government and the states, the limits on governmental authority, and the protection of individual liberties.

Ensuring Accountability

By clearly defining the powers of each branch of government, expressed powers promote accountability. Citizens can hold their elected officials responsible for exercising their powers within the bounds of the Constitution.

Protecting Liberty

The enumeration of powers is a safeguard against tyranny. By limiting the scope of governmental authority, expressed powers protect individual liberties from arbitrary government intrusion.

Fostering Debate

The interpretation of expressed powers is a constant source of debate and discussion in American politics. This debate is essential for ensuring that the Constitution remains a living document that can be adapted to the challenges of a changing world.

Conclusion

Expressed powers are the foundation upon which the structure of American government is built. They are the specifically delegated authorities granted to the federal government, primarily Congress and the President, within the U.S. Constitution. These powers are not open to interpretation; they are explicitly stated, which limits governmental authority, provides clarity, establishes federalism, and guides judicial interpretation. While these powers are clearly defined, they are not without limitations. The Bill of Rights and other constitutional provisions ensure individual liberties are protected and government overreach is prevented. The dynamic interplay between expressed and implied powers, along with the constant judicial interpretation, ensures the Constitution remains relevant and adaptable while safeguarding the principles of limited government and individual freedom. Understanding expressed powers is fundamental to comprehending the balance of power and the enduring principles of American democracy.