My next posts will highlight federal programs and departments that clearly fall outside of the realm of the express, and even the implied, powers of Congress listed in Section 1 of the Constitution.  First we need to take a look at the US Constitution and the parameters it set, as well as a Supreme Court decision that opened the floodgates for big government.

Like a student running for class president on a platform of longer recesses, many members of Congress promote bills that make them more electable (profits their home district and/or sounds like a noble/popular cause) without the foresight to weigh the negative financial and societal impacts of their legislation or even consider whether the bill falls inside the intended scope of the federal government. Class presidents do not have the power to extend recess, however Congress has gotten away with over-legislating the American people.

Article I, Section 8 of the Constitution defines the scope of Legislative power. It consists of eighteen clauses. Clauses 1-17 itemize the specific (express) powers of Congress. The 18^th clause empowers Congress to make any laws that are necessary and proper to carry out its power. It has provided pro-government growth advocates with a legal loophole, known as implied powers, for their legislative agendas.

Pro-growth advocates use clause 18, often called the “elastic clause” or “necessary and proper clause”, to initiate policies that are not specifically authorized in the Constitution but are considered implied powers. The Supreme Court provided the precedence for invoking the elastic clause in the court case McCULLOCH v. STATE, 17 U.S. 316 (1819). This case ultimately decided the constitutionality of the federal government to create a federal bank even if it was not expressly listed as being part of Congress’ scope of power.

“There is nothing in the Constitution of the United States similar to the Articles of Confederation, which exclude incidental or implied powers.”

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZS.html

Chief Justice John Marshall’s majority opinion argued that the framers of the constitution were purposefully vague in their description of federal power in order to avoid the pitfalls caused by the weak Articles of Confederation. I find the decision in this case to be agreeable. Although creating a federal bank is not an expressed power of Congress, it was empowered to coin and regulate the value of money, borrow money on the credit of the United States, and regulate interstate commerce.  A federal bank can be considered necessary and proper to executing Congress’ power. However, we shall see that the 18^th clause’s elasticity has been stretched to the max.

Additional Info:

According to Ray Notgrass in the book “Exploring Government”:

"The Constitution gave only specific, enumerated, delegated powers to the national government. The Constitution was not an open invitation for the Federal government to take over and do whatever Congress or the President wanted. The Federal government was not to go beyond its enumerated powers, and the states retained the powers not expressly given to the Federal government."

Article I, Section 8.
http://www.law.cornell.edu/constitution/constitution.overview.html

1. The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;

2. To borrow money on the credit of the United States;

3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

4. To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

6. To provide for the punishment of counterfeiting the securities and current coin of the United States;

7. To establish post offices and post roads;

8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

9. To constitute tribunals inferior to the Supreme Court;

10. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

13. To provide and maintain a navy;

14. To make rules for the government and regulation of the land and naval forces;

15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

16. To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

17. To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the building of forts, magazines, arsenals, dockyards, and other needful buildings;--And

18. 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.

10^th Amendment to the US Constitution

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Excerpt of John Marshall’s majority opinion in McCulloch vs. State

(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=17&invol=316)

“Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only, that the powers 'not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;' thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles [17 U.S. 316, 407] of confederation, and probably omitted it, to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”