The doctrine of implied power
Author: Prashant Saurabh
Pursing L.L.M, CNLU Patna.
ISSN: 2582-3655
1.1 INTRODUCTION
“Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”: “Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect.”
Implied powers are political authorities conferred to the govt that are not expressly enshrined in the Constitution. They are implied to be granted because all these implied powers are required for any given governing body to function. Implied power is believed to have been built independently of an express grant of power because it is “inherent” in the operations of the authority trying to seek to exercise it. It is not entirely reliant on any text – based implication or explanation, though it may consequence from a detailed analysis of a specific text.
Black’s Law Dictionary defines ‘implied power’ as:
“A political power that is not enumerated but that nonetheless exists because it is needed to carry out an express power.”[1]
As the term indicates, ‘implied power’ seems to be something that stands due to various express power but without which express power cannot be implemented.
The essence of implied powers has been around since the Constitution was drafted, however, the term itself has been around and even longer. It has, in fact, been present in political thought since at least the 1780s. An early work from 1785 references the implied Powers and Privileges of Irish political entities. Given that Ireland and its neighborhood already were proven as sovereign nations, it logically follows that the US would not be the first one to use the term. As late as the 1810s, the phrase has become more frequently associated with the United States and its Constitution.
McCulloch v. Maryland[2] was concluded by the United States Supreme Court in 1819. The case was to fix a debate over chartering of the Second Bank of the United States. Issues were expressed about its constitutionality because it was governed by private shareholders while also trying to serve as a depository for federal funds. State banks were upset because the Second Bank was positioned as a direct competitor. Indeed, the state banks began to fail in 1818, with the Second Bank being held responsible. The state legislature has all powers not expressly forbidden by the national Constitution and the constitution of the particular state, according to a well-established principle of American constitutional law. Simply put, state legislation is said to be valid and constitutional unless this conflicts with a provision of the state or national constitutions. The states have all of the powers not granted to the national government by the United States Constitution, and the state legislature is regarded as a sort of residuary legatee, with all of the state government’s powers not forbidden to it by the state constitution or granted to some other department or organ of the state through that instrument.
The doctrine was discussed in India in the case of Bidi, Bidi Leaves and Tobacco Merchant’s Association v. State of Bombay[3] (hereinafter referred to as “Tobacco Merchants”). The Court discussed the sheer magnitude and effect of the Doctrine of Implied Power, that is used as a tactic for interpretation.
In many cases, the Statute confers a duty on an Authority, but that obligation or power cannot be discharged or decided to exercise unless some ‘other’ power is assumed to exist, and in the absence of such ‘other’ power, the obligation prescribed by the Statute has become inconceivable to comply with. The impossibility must be so severe that there are no exceptions, and the Statute would be delivered voidable if that ‘other’ power is not assumed.
However, in the Tobacco Merchants Case, the Hon’ble Supreme Court cautioned about the applicability of the Doctrine of Implied Powers, stating that “the doctrine of implied power can be invoked where the material provision of the Act would become impossible of enforcement without the said power.”
Thus, in no other circumstance can this doctrine be invoked except when it is impossible to enforce the express provisions of a Statute and the existence of some deemed power is held to be valid. The Doctrine of Implied Powers would be inapplicable in all other circumstances where the express power could be exercised without assuming any ‘other’ power. Furthermore, the Doctrine of Implied Powers cannot be invoked based on urgency or the gravity of the grievance. When the Statute is clear and does not imply the existence of any implied power, it cannot be done by invoking other grounds or reasons. To reach a conclusion, the Legislation must be read in its totality.
This research deals with the comparative study of concept and implication as well as limitation of Doctrine of Implied Power in USA where express provision has been made regarding the same vis a vis in Indian legal system where there is no such express provision in this regard.
To study the ‘Doctrine of Implied Power of India and US.
Books, articles, reports, papers presented at seminars/conferences, magazines and material available on websites have been surveyed. A number of judgments delivered by the Supreme Court as well as various High Courts have also been gone through by referring to the law journals relating to the theme of this research.
- ‘Constitution of India’ by V.N. Shukla also produces an effective light on the development of the Rule of Law and how the implementation has been made till now.
- ePgPathshala paper 03, entitled ‘Advance Constitutional Law’, published on the internet by MHRD, has been referred to understand the relevant provisions of the constitution regarding Doctrine of Implied Power.
India follows a more restricted doctrine of Implied Power as compared to that of USA.
The research method followed is doctrinal research, here existing laws-related cases and authoritative materials are studied for research.
Primary data: The Constitution of India.
Secondary Source: Magazines, Books, Journals.
- The research study has been done from a selective material from the books, articles and the internet.
2.1 MEANING OF IMPLIED POWER: GENERAL OVERVIEW
Black’s Law Dictionary defines ‘implied power’ as:
“A political power that is not enumerated but that nonetheless exists because it is needed to carry out an express power.”[4]
As the name implies, ‘implied power’ is something that exists because of express power and without which express power cannot be exercised. Implied powers are not mentioned in the Constitution, but are created under the “reasonable and necessary” clause by trying to combine the express powers that they do have.
WHAT EXACTLY IS IMPLIED POWER?
Implied powers are legitimate power granted to the government that is not clearly and explicitly stated in the Constitution. They are implied to be conferred because similar powers have been established. Such implied powers are permitted for just about any given trying to govern body to function.
WHERE DOES IMPLIED POWER ORIGINATE?
The concept of implied powers has been around since the Constitution was written, though the phrase itself has been around even longer. It has, in fact, been present in political theory since at least the 1780s. As late as the 1810s, the phrase became more commonly associated with the United States and its Constitution.
THE IMPLIED POWERS’ PURPOSE
Implied powers were a way for the framers of the United States Constitution to provide a document that could grow with the country. Using the express powers as a guide, the government would be able to use the “necessary and proper”6 clause to meet the American people’s ever-expanding needs. For example, they could set fair wages or pass a healthcare bill to ensure that all people are treated fairly and have access to the services they require. Thus, implied powers play an important role in giving a country’s constitution the character of a “living document.”
2.2 CONTROVERSIES RELATING TO IMPLIED POWERS
The “necessary and proper” clause in the United States Constitution is fraught with controversy by definition. The first is in the language itself. What is considered “necessary and proper” is subjective and depends on the interpretation of the article. What one person deems necessary, another may not. Furthermore, the fact that this clause broadens the scope of other clauses raises concerns about where that power ends. The limitations of the articles and the power they create cause controversy.
THE IMPLIED POWER
While the elastic clause’s wording was intended to make the Constitution timeless, it can cause controversy due to differences in interpretation and the power it creates. The reserved powers under the Tenth Amendment are a good example of this. A thorough understanding of the Constitution demonstrates how checks and balances are used on a daily basis.
CHAPTER III: IMPLIED POWER UNDER THE CONSTITUTION OF USA
In 1787, the United States Constitution was signed. The world has changed dramatically since then. With the expectation that changes would occur, the framers of the Constitution granted the federal government certain implied powers. The notion of implied powers was crucial in determining the First Bank of the United States’ constitutionality. This bank would handle the American Revolution’s war debt and help standardize the currency of the newly independent country. It was eventually built, but when it was first proposed, citizens objected, claiming that it violated the founding document (the Constitution). While the federal government is granted explicit powers through the Constitution, Alexander Hamilton stated in 1791 that the authority of implied powers should be recognized as an important part of the government’s ability to function adequately. He believed that implied powers should be treated the same as explicitly conferred powers. He also stated that many other powers wielded by the government are only implied.
In McCulloch v. Maryland[5] was agreed by the United States Supreme Court in 1819. The case was to resolve a disagreement over the chartering of the Second Bank of the United States. Concerns were raised about its constitutionality because it was controlled by private stockholders while also serving as a depository for federal funds. State banks were upset because the Second Bank was positioned as a direct competitor. Indeed, the state banks began to fail in 1818, with the Second Bank being tried to blame.
The Second Bank also refused to pay the tax on banks not chartered in the state, prompting the state of Maryland to sue it. Hamilton’s statements about implied powers in government were officially affirmed, led by Chief Justice John Marshall. The court determined that Congress had powers explicitly granted by the Constitution, as well as the authority to go beyond the Constitution.
In this case, the Supreme Court ruled that, while the Constitution made no mention of the establishment of banks, Congress did have the authority to do so through these implied powers. The authority was granted by the Constitution’s Necessary and Proper Clause in Article I. This is especially relevant to the establishment of a national bank, because the bank would act as an agent, carrying out tasks explicitly delegated to the government, such as tax collection. In addition, the court ruled that Maryland’s tax on the Second Bank of the United States was unconstitutional. Implied powers are not stated in the Constitution, but are created under the “necessary and proper” clause by trying to combine the express powers that they do have.
SECTION 8 OF ARTICLE 1: NECESSARY and PROPER CLAUSE
Clause 18 of Article 1, Section 8 of the United States Constitution creates implied powers. This is known as the “necessary and proper” clause or the “elastic clause.”[6] It states: “To make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested in the Government of the United States by this Constitution, or in any Department or Officer thereof.”
FIRST IMPLIED POWER EXAMPLE
McCulloch vs. Maryland is one of the most well-known cases involving implied power. In this case, Congress used the Constitution’s implied power to establish the Second National Bank. They did so because it was deemed “necessary and proper” for the general welfare of the US and its people.
When Maryland attempted to levy a tax on these notes, John McCulloch filed an appeal. The Supreme Court ruled in favour of McCulloch, establishing a precedent for the use of implied powers to create laws.
MORE IMPLIED POWER EXAMPLES
The United States government has used implied powers in a variety of ways throughout American history. The government has used its power to regulate commerce, collect taxes, raise an army, and establish post offices, to name a few.
- The U.S. government created the Internal Revenue Service (IRS) using their power to collect taxes.
- The minimum wage was established using the power to regulate commerce.
- The Air Force was created using their power to raise armies.
- The regulation of firearms is based on using the commerce clause.
- Banning discrimination in the workplace is also based on the commerce clause.
- Regulation of tobacco and alcohol falls under the implied powers in the commerce clause.
- The creation of the American Disabilities Act (ADA) under the commerce clause was later justified by the 14th Amendment.
- The government can punish tax evaders using the power to collect taxes clause.
- Prohibition of mail fraud is based on the clause to establish post offices.
- The creation of the draft uses the power to raise and support armies. Legislation on national health care utilizes the clause for general welfare and collecting taxes.
A few more examples of how Congress has exercised its wide-ranging implied powers granted by Article I, Section 8, Clause 18 include:
- Gun Control Laws: In clearly its most controversial use of implied powers, Congress has been passing laws limiting the sale and possession of firearms since 1927. While such laws may seem to be at odds with the Second Amendment ensuring the right to “keep and bear arms,” Congress has consistently cited its expressed power to regulate interstate commerce granted to it by Article I, Section 8, Clause 3, commonly called the “Commerce Clause,” as justification for passing gun control laws.[7]
- Federal Minimum Wage: Another illustration of Congress’ use of its implied power can be seen in its rather loose interpretation of the same Commerce Clause to justify its passage of the first Federal Minimum Wage law[8] in 1938.
- Income Tax: While Article I give Congress the broad specific power to “lay and collect Taxes,” Congress cited its implied powers under the Elastic Clause in passing the Revenue Act[9] of 1861 creating the nation’s first income tax law.
- The Military Draft: The always controversial, but still legally mandatory military draft law was enacted to implement Congress’ expressed Article I power to “provide for the common Defense and general Welfare of the United States.”
- Getting rid of the Penny: In almost every session of Congress, lawmakers consider a bill to do away with the penny, each of which costs taxpayers nearly 2-cents each to make. Should such a “penny killer” bill ever pass, Congress will have acted under its broader Article I power to “coin Money…”.
The national government’s specific enumerated powers are not separate grants of self-contained powers. They form four clusters of extensive powers in the national government when combined: collective defense, foreign policy, national and interstate relations, and economic union. These aggregate powers are “ends” or “objects” of national power, and the listed and implied powers of Congress can be “means” for accomplishing those ends.
CHAPTER IV: IMPLIED POWER UNDER THE INDIAN CONSTITUTION
The problem of “implication” in the typical sense. The implication in formal logic has a different meaning, and the two should not be confused. While we regularly use logical reasoning in legal reasoning, or at least reasoning inspired, often unwittingly, by formal logic, it is neither possible nor helpful to claim that a more rigorous correlation- is omnipresent in the legal interpretation of texts. This really is due to the open texture of legal rules or norms, which would be linked to the undefined meaning of that word used to embody and define those rules or norms that one may take into account to be “implied” directly or indirectly from legal texts.
In India, the Tobacco Merchants Case discusses multiple meanings of the Doctrine of Implied Powers. In the famous Five Judges Bench Judgment of “Bidi, Bidi Leaves and Tobacco Merchant’s Association v. the State of Bombay”[10] (hereinafter referred to as “Tobacco Merchants”). This decision discussed the full extent and effect of the Doctrine of Implied Power, which serves as a tool for interpretation. The Doctrine of Implied Powers is not to be confused with the interpretive tool ‘casus omissus.’ The definition of ‘casus omissus’ will be discussed later in this post.
It starts with ‘Craies on Statute Law’[11] which says that:
“One of the first principles of law with regard to the effect of an enabling act is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view.”
In Michael Fenton and James Fraser v. John Stephen Hampton[12] it was observed that:
“Whenever anything is authorized, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else nonauthorized in express terms be also done, then that something will be supplied by necessary intendment.”
Thus, the significance of this Doctrine comes into play when it is observed that the Statute confers a duty on an Authority and that obligation or power cannot be discharged or exercised unless some ‘other’ power is assumed to exist, and in the absence of such ‘other’ power, the obligation prescribed by the Statute has become impossible to comply with. The impossibility must be so severe that there are no exceptions, and the Statute would be rendered null and void if that ‘other’ power was not presumed.
4.2 CAUTION IN INVOKING THE DOCTRINE OF IMPLIED POWERS
The Latin Maxim “Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”, is also relating to the Doctrine of Implied Powers. It means that:
“Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect.”
However, in the Tobacco Merchants Case, the Hon’ble Supreme Court cautioned as to the applicability of this Doctrine by stating that “the doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement”.
As a result, this doctrine cannot be used in any other situation. Only when it is impossible to enforce the express provisions of a statute can the existence of some deemed power be held to be valid. The Doctrine of Implied Powers would be inapplicable in all other circumstances where the express power could be exercised without assuming any ‘other’ power.
The Doctrine of Implied Powers should never be invoked because of the urgency or gravity of the grievance. When the Statute is clear and does not imply the existence of any implied power, it cannot be done by invoking other grounds or reasons. To reach this conclusion, the Statute must be read in its entirety.
4.3 DOCTRINE OF IMPLIED POWERS V. CASUS OMISSUS
The Doctrine of Implied Powers is neither similar to nor an offshoot of the Latin maxim ‘casus omissus’. The Black’s Law Dictionary defines ‘Casus Omissus’ as:
“A situation not provided for by a statute or contract, and therefore governed by caselaw or new judge-made law.”[13]
The Latin maxim that governs the situation of “casus omissus et oblivioni datus dispositioni communis juris relinquitur” means that “a case omitted and forgotten (not provided for in statute) is left to the disposal of the common law.”
Thus, the Doctrine of Implied Powers does not address cases or situations that have been left out of the statute; rather, the Doctrine of Implied Powers addresses situations in which an express provision could not be given effect without assuming something. ‘Casus omissus,’ on the other hand, specifically deals with a situation in which a situation has been completely left out of the statute and there is nothing express in the statute to cover the said situation. As a result, there is a thin but discernible line between the Doctrine of Implied Powers and ‘casus omissus.’
The Doctrine of Implied Powers has stood the test of time and has been cited in several Supreme Court cases. This is a technical doctrine that would require some ingenuity to persuade the Court to invoke it. Normally, the Statutes are a self-contained code, and it is rare that something must be assumed. In other words, requiring this doctrine to be invoked anywhere would be a poor example of legislative drafting, as it is always best to codify as much as possible through express provisions, leaving no room for ambiguity in interpretation. The Courts have repeatedly stated that if literal interpretation is capable of providing complete meaning and effect to a provision of law, then no other tool or aid of interpretation, such as the Doctrine of Implied Powers, is required.
CHAPTER V: IMPLIED POWER: INDIA VIS A VIS USA
To imply a power is implied is to suggest it has no form, that it has no formal or textual existence; this may appear to be the very definition of an implied power. The Necessary and Proper Clause[14](also known as the Sweeping Clause) in the United States Constitution is a classic example of a general textual authorization for invoking powers that are not approved by the state. It approves Congress to “make all laws necessary and proper for carrying into execution” the attributed powers. This provision’s meaning and significance have been the subject of extensive scholarly debate[15]. According to one influential early commentator, it does not increase Congress’ powers but simply emphasizes what should be obvious, namely, that Congress must be able to do whatever is necessary for it to exercise its powers. It could be considered a “express implied power”; in fact, some believe it is inappropriate to call it an implied power at all[16]. However, this issue is resolved when we acknowledge that a general express implied power is merely an authorization or justification for the exercise of specific powers that are not express; in fact, this is its very purpose. Whatever the case, focusing on the issue of form – or, more accurately, the absence of form – as a basis for analysis is not a promising strategy. The existence of the Sweeping Clause contributes to the richness of American implied powers doctrine. There is no such express provision in the Indian Constitution. Other examples can be found in the Australian Constitution’s[17] Section 51(xxxix) and the Treaty on the Functioning of the European Union’s Article 352.[18]
Aside from the constant references to the courts’ “inherent jurisdiction,” however, inherent powers are hard to come by in Indian constitutional law. This may appear surprising at first glance, because as every student of Indian constitutional law knows, the Supreme Court does not shy away from interpreting the Constitution broadly. In fact, it has not always felt constrained by the writing. The most obvious example is its extremely liberal interpretation of the Constitution’s fundamental rights provisions. These, of course, deal with limitations on power rather than with powers themselves. Similarly, the basic structure doctrine38 is an example of a constitutional limitation reached through teleological reasoning: the Court held that Parliament could not amend the Constitution in such a way as to remove its democratic and secular nature, basic rights, and so on: these aspects of the Constitution govern the substantive parts of the State’s relationship with its citizens. The approach taken in this context is one of limiting State power in order to prevent its abuse in relation to society as a whole. These are inherent limitations; inherent powers for the executive and legislative branches are not easily admitted.
This balancing of public and private interests, however, is not directly relevant in the context of interpreting the lists of Union and State competences, which instead involves a balancing of two different public interests on the basis of detailed textual provisions; thus, the presence of a frequently invoked doctrine of implied incidental powers. The presence and absence of references to implied powers thus appear to fit a larger pattern of a judicial tendency to limit the expansive use of legislative and executive powers when individual rights are at stake.
Article I, Section 8 of the Constitution grants Congress a very specific set of powers known as “expressed” or “enumerated” powers that serve as the foundation of America’s federalist system — the division and sharing of powers between the federal government and the state governments. When Congress established the First Bank of the United States in 1791, President George Washington asked Treasury Secretary Alexander Hamilton to defend the action, despite objections from Thomas Jefferson, James Madison, and Attorney General Edmund Randolph. Hamilton explained in a classic argument for implied powers that the sovereign duties of any government implied that the government reserved the right to use whatever powers were necessary to carry out those duties. Hamilton went on to argue that the Constitution’s “general welfare” and “necessary and proper” clauses gave the document the pliability that its framers desired. President Washington, persuaded by Hamilton’s argument, signed the banking bill into law. In the 1816 decision McCulloch v. Maryland, Chief Justice John Marshall cited Hamilton’s 1791 argument for implied powers in upholding a bill passed by Congress creating the Second Bank of the United States. Marshall argued that Congress had the authority to establish the bank because the Constitution grants Congress implied powers in addition to those explicitly stated.
CHAPTER VI: CONCLUSION
It is a well-known fact that the doctrine of implied power in its formal sense originated in the United States. As a result, it is widely used in the United States. In India, however, this is not the case. In India, the doctrine of implied power is applied through judicial interpretation.
Article I, Section 8, Clause 18 grants Congress 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 so-called “Necessary and Proper Clause” or “Elastic Clause” grants Congress powers that are assumed to be necessary to implement the 27 powers listed in Article I, despite not being specifically listed in the Constitution. This is an express provision granting Congress implied power.
However, there is no direct express provision for this in India. In the case of Parliament, implied power is drowned out by the residuary clause provided in entry 97 of the Union List under Schedule 7 of the Indian Constitution. Furthermore, the judiciary has inherent jurisdiction under the Constitution and other statutes. However, despite their similarity in effect, these powers do not fall within the purview of implied power in its true sense.
Unlike in the United States, the use of implied power in India is subject to judicial interpretation and must be approved by the legislature. The Hon’ble Supreme Court cautioned about the applicability of the Doctrine of Implied Powers in the Tobacco Merchants Case, stating that “the doctrine of implied power can be invoked where the material provision of the Act would become impossible of enforcement without the said power.”
As a result, this doctrine cannot be used in any other situation. Only when it is impossible to enforce the express provisions of a statute can the existence of some deemed power be held to be valid. The Doctrine of Implied Powers would be inapplicable in all other circumstances where the express power could be exercised without assuming any ‘other’ power.
BIBLIOGRAPHY
REFERENCE BOOKS and ARTICLES:
Granville Austine: The Indian Constitution cornerstone of a nation, Oxford University Press, New Delhi, 1972
M.P Jain: Indian Constitutional Law, LexisNexis. 7thedition, New Delhi, 2014
Brandon J. Murrill: Modes of Constitutional Interpretation, Congressional Research Service. March15,2018.
William A. Kaplin, The Process of Constitutional Interpretation: A Synthesis of the Present and a Guide to the Future, 42 RUTGERS L. REV. (1990).
Sandalow, Terrance: Constitutional Interpretation, Mich.L.Rev.79,1981
Kenneth R. Thomas: Selected Theories of Constitutional Interpretation, Congressional Research Service, 2011
IMPORTANT WEBSITES:
[1] https://thelawdictionary.org/implied-powers/
[2] 17 US 316 (1819)
[3] 1962 Supp (1) SCR 381
[4] https://thelawdictionary.org/implied-powers/
[5] 1789-1850/17us316
[6] Clause 18 in Article 1, Section 8 of the U.S. Constitution
[7] Article I, Section 8, Clause 3
[8] Federal Minimum Wage Act, 1938
[9] Revenue Act, 1861
[10] 1962 suppra (1) SCR 381
[11] ISBN13: 9780421145108
[12] (1857-1859) 117 R.R. 32
[13] https://thelawdictionary.org
[14] Article I, S8, SS18
[15] See generally J. Story, Commentaries on the Constitution of the United States 109-126 (1833); L.H. Tribe, American Constitutional Law 798-807 (3rd. ed., 2000); R.E. Barnett, The Original Meaning of the Necessary and Proper Clause, Boston University School of Law, Public Law and Legal Theory Working Paper No. 03-11, available at http://papers.ssrn.com/abstract=410542; G. Lawson and P.B. Granger, The ‘Proper’ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke Law Journal 267 (1993).
[16] W.W. van Alstyne, Implied Powers, 24 Society 56 (1986).
[17] Parliament is given the power to make laws with respect to “(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth”.
[18] “Article 352(1). If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures….”