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Constitutional Law: Implied and Inherent Powers

Our next topic was inherent and implied powers. “Implied” powers are linked to the textually assigned powers and serve as means to the ends spelled out in the text. The text doesn’t specifically grant the power, but the text does suggest it. “Inherent” powers don’t depend on the existence of any textual assignment. As an example, we can use a contemporary problem and ask how the government has power to control immigration. An implied power could be taken from the sovereignty given the government. You could use a natural reason argument to ask what is a nation if it’s not sovereign and doesn’t have the power to control its area and borders? If a nation is sovereign, it controls entry. This is an argument that shows the power to control immigration is inherent in the Constitution. An implied argument would be that Congress has the power to provide for the common defense and you can’t do that if your enemies can enter at will. Or you could say that Article I section 9 says that Congress can’t restrict migration or importation until 1808, showing that Congress would have the power after 1808. These arguments imply that Congress does have the power by pointing to places in the text that supports the argument. With any power not expressly enumerated, you can have both implied and inherent powers so it’s sometimes hard to classify a power as solely implied or inherent.  



January 16, 2007 - Posted by | Constitutional Law

1 Comment »

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