Would it be necessary and proper for Congress to mandate a national nap time? Probably not, but we wouldn't mind it.
So when our Constitution was written and our union formed...
...our founding fathers gave a lot of thought as to the power they would be giving to Congress.
Because no one wanted to wind up with a Mount Doom situation on their hands.
There are two basic types of powers that were granted to Congress -- enumerated and implied.
Enumerated powers were those that were directly stated, while implied powers were more, well... implied.
Congress' implied powers are stated in the "Necessary and Proper Clause" of the Constitution...
...where it says that 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
Whew. Those boys sure did like their long sentences, didn't they?
Essentially, they were giving Congress a bit of wiggle room. If there were certain laws
they deemed "necessary and proper" in order to carry out their other Constitutional
rights, they could enact them.
It would be like if your parents had asked you to babysit your baby brother, and they
gave you the right to deny him dessert after dinner.
While it wasn't implicitly stated, if your brother did reach for a slice of cake anyway,
you might deem it "necessary and proper" to tie him to the couch with bungee cord.
Isn't wiggle room swell?
Okay, those are the implied powers... what about enumerated powers?
You got it. Here's the shortlist of the rights Congress was given by the Constitution
in Article 1, Section 8:
They were granted permission to borrow money for the United States...
...create and collect taxes, as long as those taxes are imposed equally from state to state...
...impose restrictions on commerce...
...establish a Post Office...
...maintain a Navy and provide supplies for them...
...manage, train, and arm a militia...
...and identify and enforce crimes at sea.
So, as you can see, they had their fingers in quite a few pies.
Which you could probably tell just by looking at most of them.
But, despite all that power, Congress was not given complete control...
...thanks to Article 1, Section 9 of the Constitution...
...which laid out a handful of laws Congress could not make.
Congress was specifically forbidden from controlling immigration... until 1808, anyway.
...forbidden from passing any ex post facto laws, meaning laws that could result in the
arrest of a person who committed an illegal act... back before it was made illegal...
...and forbidden... for the most part... from suspending the writ of habeas corpus, which
states that a person needs an arrest warrant to be taken into custody.
They were also forbidden from hogging the Congressional Playstation, but
that was more of a verbal thing.
Sounds like Congress' do's and don'ts are pretty clearly defined, right?
Eh, not so much. Unfortunately, language can always be interpreted in various ways.
Strict constructionists argue that Congress should interpret the Constitution very literally
and narrowly... in other words, they only have the powers explicitly stated in the Constitution.
Broad constructionists are on the flip side of the coin. They say that, because the Constitution
grants Congress implied powers, we should focus more on the intent of the Constitution.
For example, the internet wasn't around in the 1700s, but does that mean Congress
shouldn't have any power to regulate it?
Broad constructionists would argue it's implied that Congress should be able to make
laws concerning the internet. Even if there is no specific "Google Clause" in the
So basically, Congress' powers depend on what your definition of "necessary and proper" is.
Sadly, no matter what your viewpoint...
...today's Congress lacks the one power that arguably supersedes all others...
...the power to get anything done.