Diary: Another Constitutional Issue Examined: the Real 'Implied Powers'

I had the opportunity to discuss an issue with an OpEdNews editor recently concerning the Oklahoma Legislature falsely stating it was reclaiming certain governmental powers under the Tenth Amendment to the United States Constitution. The issue I raised was that there is no way for a state to claim political powers under the Tenth because the Tenth didn't address state powers, it is clearly a "people's power" amendment, and Oklahoma's constitutional powers are in the Oklahoma Constitution. Using the Tenth to claim powers not in a state constitution or evading prohibitions put up by the US Constitution is absolute nonsense. During the exchange the issue of "implied powers" arose in which the editor responded: "Implied powers: I guess that is why Bush claimed that the Constitution was just a piece of paper. After all, with implied powers, why look at the actual words?"

That response makes it abundantly clear that even editors of a progressive site such as OpEdNews need to be schooled in constitutional principles, such as "implied powers." Future articles will deal with "actual words" in the Constitution.

Another frequent contributor ~ OEN's primary "libertarian" propagandist ~ said: "The meaning of the 10th Amendment is that the fedgov only has the powers that the Constitution specifically grants it." He added in another reply that, "It would seem that the Founders weren't about implied powers but enumerated ones."

He is wrong because no where in the Constitution does that document restrict powers to "specific" or "enumerated."

The "libertarian" then posted a diary link (below) to an article that contained many absurd notions, including the one that the states gave up some of their powers to form the new national government. That contradicts words of the Preamble that says "We the people" formed the new nation and the Tenth Amendment that clearly says the people gave up their powers to the national and state governments. The article attempted to re-establish positions rejected by the Founders; the rejections sustained in Supreme Court decisions two centuries ago.

Both deniers are obviously unfamiliar with the constitutional concept of "implied power" that the Founders understood quite well. They could have just typed "implied power in US Constitution" into the Google search engine and within a third of a second have more than a quarter million sources proving to them they know nothing on the subject. But they would rather argue.

So let's make one thing clear, "implied powers" is a well-established principle of the United States Constitution as was explained in Founding Father John Marshall's written Supreme Court opinion of McCulloch v. Maryland (1819).

It is valid because Article I, Section 8, paragraph 18, says Congress shall have the (implied) power "To make all Laws that are necessary and proper to carrying into execution the foregoing (enumerated) Powers (in Article I, Section 8) and all other (stated) Powers (elsewhere in the Constitution) vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

How implied powers work:

Article I Section 8, paragraph 1, empowers Congress to "lay and collect taxes, Duties, Imposts and Tariffs..." But no rational person would expect members of Congress to go door to door collecting taxes from each of us. And since many members of Congress are busy raiding the Treasury as it is, we shouldn't trust them with collecting anything of value.

Implied powers therefore enable Congress to establish a mechanism to do the physical collecting. That is the Internal Revenue Service (IRS). Even though the IRS isn't mentioned in the Constitution it is a necessary function of this constitutional democratic republic no matter how much hatred it evokes from the political right and self-labeled "libertarians."

The Constitution also grants Congress power to coin money and regulate the value and to "punish Piracies and Felonies committed on the high Seas and offenses against the Law of Nations ..."

But no one should expect members of Congress to be running the stamping machines to make coins or the printing presses to print dollar bills, so implied power allows the legislature to create the US Mints in Philadelphia, Denver and San Francisco to do the physical work. Mints are not mentioned in the Constitution.

And Congressional members really aren't qualified to establish the value of our money so Congress uses implied power to create the Federal Reserve Board to do that, which it does by manipulating various interest rates by economic "experts" who are supposedly well qualified for that task. Value of money is also established by a minimum wage law indicating that one hour of labor is worth a specific dollar amount.

In a recent OEN rant, a contributor had this to facetiously say about government lying:

"Another big lie worth noting: The Federal Reserve.

"Of course this a benevolent entity only concerned with maintaining the American peoples' lifestyles and dreams. Just because it's never been officially stated who owns the Fed or that they have no accountability to the people doesn't mean that everything they do is not in our best interests. And just because every dime taken from each individual taxpayer goes to pay the interest on the money they printed out of thin air and loaned (sic) to our government doesn't mean it's a scam. And of course our government couldn't function without a central bank controlling our monetary system just because it worked for the majority of our country's history. Things are different now."

It has been stated repeatedly that the Federal Reserve Board is a government entity. It is headed by people appointed by the President and approved by Congress. The Board's staff is composed of federal employees. The various Federal Reserve Banks are privately owned entities, owned by those banks chartered under authority of the United States government. There are no printing presses in any Federal Reserve Bank or the Board to print money "out of thin air." Money is printed by the three US mints, which exist under Article I, Section 8, paragraph 5's power of Congress "To coin money..." and they only print money to back up the value of the ever-expanding Domestic National Product and to replace money worn out or destroyed. The private-sector Federal Reserve Banks are responsible to their owners and are not affiliated with the Federal Reserve Board. The Federal Reserve Board exists under the Constitution's mandate that Congress regulate the value of money (Article I, Section 8, paragraph 5).

And the 1819 case of McCulloch (mentioned above) upheld Congress's implied power to create the Bank of the United States (unmentioned in the Constitution), which did then what the Federal Reserve Board does now, so the writer was wrong in saying that we have done well without a central bank for the "majority of our country's history."

And no one should expect members of Congress to physically flog the pirates captured at sea, so the punishment is conducted by courts and juries through implied power of Congress to turn such miscreants over to others to do the actual punishing.

There is no enumerated subpoena power of Congress in the Constitution. But Congress has the power to make all laws that are "necessary and proper" to carry out the specific powers in the Constitution, so it must rely on implied subpoena power in order to get to the truth and reality to ensure laws are "necessary and proper."

Most Americans assume that the Constitution guarantees them a "fair trial" if they were ever charged with a crime. The Constitution says nothing on the subject. It guarantees only a speedy and public trial before an impartial jury. The impartiality of juries implies a fair trial because any jury that relies on bogus, falsified or dishonest testimony can't be impartial. And nothing in the Constitution says judges are to be fair. That also is implied because a unfair judge would taint a jury to a degree it can't be impartial.

Righties claim the Supreme Court can't declare laws unconstitutional because the Constitution doesn't specifically state that. But Article III states that judicial power extends to "all cases" arising under the Constitution and that would include federal law made under the congressional power of Congress to make laws The Court must decide that one side or the other is correct in a dispute it is directed to decide under Article III's mandate. Again the courts must rely on implied powers to carry out this specific power.

The Founders were well aware of the Dr. Bonham case, a decision made in London by Sir Edward Coke in 1610 in which that learned jurist stated that any law that runs counter to the constitution of the nation must be declared unconstitutional. Our judicial system was developed under the principles of the British system so the Founders retained much of British jurisprudence thought, including implied powers. Even though Great Britain didn't then have and doesn't now have a written constitution, it relies on well-established concepts of civilized principles of fairness and decency as its constitution. Plus it borrows ours when necessary, as when "pleading the Fifth."

But we do have a written Constitution that judges are bound to uphold; even though some judges do a better job at that than do others.

Here's how implied power works in judicial proceedings. Suppose Congress passed a law naming a specific person as a criminal, say a woman who wears a man's cowboy hat. The administration's Justice Department then brings charges under that law, which is clearly a Bill of Attainder specifically outlawed by the Constitution. After conviction the woman appeals all the way to the Supreme Court and clearly proves that the law is constitutionally illegal, but ...

If the Court was powerless to declare the law unconstitutional it would be forbidden from siding with, or shielding, the victim of the unjust law. It would be forced to accept the guilty verdict (it doesn't decide guilt or innocence) and slink away without protecting an innocent victim of a vindictive Congress.

That would make the United States a totalitarian nation, its government being capable of making any law it wishes and enforcing whatever it wants with no restraints on government by the judicial system, and the people couldn't restrict government if Congress outlawed voting. The checks and balances the Constitution offers would be nothing. Americans shouldn't ever want that.

While Marshall explained the doctrine of implied powers in the 1819 case, the court first used implied power to negate an uuconstitutional law in 1803 (Marbury v. Madison) and didn't feel the need to explain its action since the doctrine was well understood at the time.

In the history of the United States, the Supreme Court has determined about 150 federal laws to be unconstitutional and had to be voided. In the same period of time about 1,000 state and local laws were found to contravene the Constitution. When we consider one state law unlawful there may be up to 49 others that also subvert the Constitution, meaning the total could well exceed tens of thousands of state and local laws invalidated. If the Supreme Court lacked the "Implied Powers" to set aside unconstitutional laws we could have descended into an authoritarian hell decades ago.

When the two deniers of implied powers, cited above, were so hasty to deny a subject they had never studied they were in essence calling Marshall a liar for claiming implied power is an important principle of our Constitution. Marshall (a state politician) was chosen by the writers of the Constitution (members of the Continental Congress) to shepherd the proposal through the Virginia ratification process, so he qualifies as a Founder and knew very well the constitutional precepts he was championing. I trust his judgment, not that of the deniers.

Thank God and John Marshall for "Implied Power."

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Author's note: McCulloch v. Maryland (a decision the two deniers apparently have never heard of) is probably the most-important Supreme Court ruling in history because it decided five constitutional principles while most cases establish one. McCulloch proved three major concepts (1) the United States was created by the people, not the states, (2) the US Constitution and federal laws are superior to any state constitution and law and (3) implied power is a valid principle of the Constitution. The author has temporarily forgotten the two lesser principles and will have to reread the decision if the issue comes up again.