Implied or Usurped? 

Whenever Congress wrangles about the Federal budget and deficits, I have the same futile thought: Why don’t they just stop spending money unconstitutionally?

Two of the biggest items in the budget, for example, are Social Security and Medicare. The U.S. Constitution doesn’t authorize either program. Eliminating them would save the taxpayers trillions of dollars.

If you read the Constitution, you’ll find the legislative powers of Congress carefully enumerated. These powers, fewer than two dozen, don’t include welfare spending.

But somehow the idea has grown up that the Federal Government has, in addition to its express powers, an indefinite number and range of “implied” powers. But the Constitution also makes it quite clear that the only “implied” powers of Congress are those which are “necessary and proper” for the execution of the powers explicitly listed. Aside from these, the Tenth Amendment makes it equally clear that all implied powers are reserved to the states and the people.

When the Constitution was offered for ratification, wise men feared that the “necessary and proper” clause would lend itself to abuse, allowing the Federal Government to aggrandize itself without limit. Thomas Jefferson was deeply suspicious of the whole notion of implied powers; he saw clearly where it might lead. He and Alexander Hamilton had a famous argument over whether a national bank fell within “necessary and proper” powers of Congress. Hamilton’s broad view of Federal powers prevailed — far more, in the long run, than Hamilton himself would have wished.

Today the “implied” (i.e., unauthorized) powers claimed (i.e., usurped) by the Federal Government enormously outnumber and utterly swamp the few powers actually granted in the Constitution. That’s why Federal spending, deficits, and our taxes are so high.

The Federal Government has tended to burst the seams of constitutional limits right from the beginning. But for many years, it was customary to justify any proposed law by showing that it was within the bounds of the Constitution. Today the question rarely comes up; it’s assumed, without debate, that Congress can legislate just about anything it pleases.

This makes the Constitution almost meaningless. Why does it list those few specific powers if the government may also claim and exercise thousands of others as well?

Hardly anyone complains about unconstitutional government. But millions would complain if their unconstitutional government checks stopped coming. The Framers of the Constitution worried constantly about the problem of usurpation; but few Americans today even understand the word usurp. It has dropped out of our public vocabulary, so we don’t recognize usurpation when we see it.

Let’s put it this way: you don’t hear the word usurpation in Congress for the same reason you don’t hear the word fornication in Las Vegas. When a vice becomes popular and profitable, it loses its proper name.

The greatest usurper of power in American history was Abraham Lincoln. By denying the right of states to secede and equating secession with “rebellion,” he enabled himself, at a stroke, to claim countless implied powers. As his defender Harry V. Jaffa puts it, “No president before him had ever discovered the reservoir of constitutional power within [the] presidential oath.”

Reservoir indeed! Because preventing secession (about which the Constitution says nothing) became, in Lincoln’s mind, “preserving the Constitution,” he felt justified in making war on the states, raising armies and money on his own initiative, arresting elected officials, suppressing free speech, shutting down the press, and establishing dictatorial military governments in place of the state governments. It was the worst period of repression in American history, and Lincoln’s actions were directed against the freedoms of the North as well as the South.

If Jefferson, who advocated the right of secession, had been alive during the war, he might well have been arrested for treason.

All this flowed from the application of the runaway idea of implied powers. Lincoln showed that the executive branch, as well as the legislative, can play the game of usurpation. It helped that he had the support of a Republican Congress, since many congressional Democrats had gone home to their seceding states. Otherwise the Democratic majority would have impeached him for his bold seizures of power.

At Gettysburg Lincoln proclaimed “a new birth of freedom.” What he actually brought the country was the death of limited government.

Joseph Sobran