Orientation and Getting Started
Early Development of the Legislative Branch and the Problem of Representation
Enumerated Powers of Congress
Implied, Expansive, and Limited Powers
The Two Congresses: Representation and Lawmaking
Separation of Powers and Interaction between the Branches
Institutional Development and Change
Congress and the American People

The Implied Powers of Congress

Implied and Expansive Powers

Article I of the U.S. Constitution also contains implied powers of Congress through several clauses that are often open to interpretation and were cause for debate during the Constitutional Convention and ratification. In some cases, Congress has used these implied powers to expand its powers of lawmaking and oversight, shifting the balance of power in the federal government.

General Welfare Clause 

The General Welfare Clause is embedded in Article 1, Section 8, Clause 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.” What does the “general welfare” mean? In his opinion in the 1935 court case United States v. Butler, U.S. Supreme Court Justice Owen Roberts wrote “Since the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase.”

The meaning of the General Welfare Clause was a subject of intense debate during ratification. Anti-Federalists contended that the clauses was ambiguous and gave Congress unlimited power to enact law, particularly tax laws, in support of the “general welfare.” Brutus said “It will then be matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter. To provide for the general welfare, is an abstract proposition…” And, “It is as absurd to say, that the power of Congress is limited by these general expressions…”  (Brutus, No. 6, 1787) The Federal Farmer took issue with Federalists who claimed that the general welfare clause meant that “…congress will only have power to make requisitions, leaving it to the states to lay and collect them. I see but very little colour for this construction, and the attempt only proves that this part of the plan cannot be defended. By this plan there can be no doubt, but that the powers of congress will be complete as to all kinds of taxes whatever.” (Federal Farmer, No. 3, 1787) Yet, Madison maintained that the term “general welfare” did not give Congress unlimited powers. The clause pertains directly to the enumerated powers that come before it. (Federalist, No. 41)

Debates on the National Bank

A debate over the meaning of the general welfare clause continued during the First Congress, when Treasury Secretary Alexander Hamilton proposed the establishment of a national bank. Although Madison and Hamilton were allied as Federalists during the ratification period, they were divided over the bank bill, and their differences hinged on their interpretation of implied powers in the Constitution. Hamilton claimed that the creation of a national bank would be a provision for the “general welfare,” which was founded in a belief that the general welfare clause was independent from, rather than a qualification of, the power of taxation. (“General Welfare Clause”) On the contrary, Madison contended, the phrase “general welfare” relates specifically to the context of Section 1, Clause 1, which refers to Congress’ power “To lay and collect taxes, duties, imposts and excises, to pay the debts.” He contended that the bank bill “did not come within the first power. It laid no tax to pay the debts, or provide for the general welfare. It laid no tax whatever. It was altogether foreign to the subject.” Thus, “No argument could be drawn from the terms ‘common defence,’ and ‘general welfare.’ The power as to these general purposes, was limited to acts laying taxes for them…” (Madison 1791, 1 February) Hamilton’s view prevailed and the House passed the bill, yet the meaning and reach of the general welfare clause was still unclear.

United States v. Butler (1936)

Debate over the interpretation of the general welfare clause persisted into the twentieth century. In United States v. Butler, the Court invalidated the Agricultural Adjustment Act of 1933 on the grounds that it violated the Tenth Amendment, that power not delegated to Congress is reserved for the states. Yet, Justice Roberts took the opportunity to clarify the “general welfare” clause in this case. He sided with Hamilton:   “… the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. “ Roberts also concurred with Justice Story’s Commentaries on the Constitution on the General Welfare Clause:  “While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”