BY RIAN HATCHER
THE ROOSTER CROWS
There is a loop hole that the Federal Courts have been using for years. Millions of us over the years have wondered, “How can the government do that?” or “That’s not in the Constitution, is it?” No,it is not!! So how? Answer: ” IMPLIED POWERS OF THE CONSTITUTION” Please let me explain.
These powers are implied, not expressed or enumerated! The courts and Congress have found a home for these implied powers in article 1, section 8, in the final clause (Necessary and Proper clause) of the section. This issue of implied powers is what split our Founders. No sooner had the Constitution gone into operation than a bitter argument arose between those who favored a strong central government and those who favored a central government of limited powers with strong governments in the states. The first group is known as Federalists and the second as Anti-Federalists. The Anti-Federalists, led by Thomas Jefferson, George Mason, and Patrick Henry, would have had the Constitution construed strictly, according to the letter. The Federalists, led by Hamilton, and John Adams, favored a broad interpretation which would render the Constitution adequate to the expanding needs of the country. The issue of whether or not Congress was to enjoy implied powers, became an important major issue between political parties.
Unfortunately, the first two Presidents were Federalists: Washington and Adams. Subsequently, the first two Chief Justices were Federalists: John Jay, and Ellsworth. When the leader of the Anti-Federalists, Thomas Jefferson, won the election of 1800, Adams, before leaving office, appointed several federalist judges, most influential was John Marshall , an eminent Federalist, as Chief Justice. Marshall’s expansive decisions on the Necessary and Proper clause loosened it to mean simply helpful not necessary. In one of his decisions he wrote, “We must never forget that it is a constitution we are expounding.”
Since the 1930s, Congress has enjoyed continual growth of power with the loosening of the Necessary and Proper clause, combined with expansive readings of the Commerce clause, Spending and General Welfare clause. Over the years, these “implied” precedents and case law decisions have resulted in: Federal Education, Social Security, Medicare, HHS, HUD, ATF, DEA, FDA, OSHA, EEOC, EPA and most recently TARP, Stimulus Bill, government take-over of banks and auto manufactures. The list goes on and on.
So what do we do? I would like to see a re-Declaration of Independence. Instead of King George, it will be Federal Government that will be addressed. In this declaration it will have to mention: Absolutely No Implied Powers are Given to Congress; all Executive Orders must be in the open and go through Congress or a possible abolishment of ALL Executive Orders. All powers are reserved to the States, equally.
We have to identify where we went wrong and how we will get out of it. I believe that if we want this change, we can NOT look towards the next President or Senator. WE THE PEOPLE have to demand that our States Revoke all implied powers. If implied powers are revoked, the Ninth and Tenth Amendments will finally become relevant for the first time in our history. All States will need to unite again and have a Constitutional Convention. The Convention must reverse the Implied Powers Doctrine and many other expansive implications, misinterpretations, and exclusions of the Constitution. This Convention and conversion of bureaucracies could take years. It can be done.
If you agree, whether Democrat or Republican, you should concentrate on how to change the system using the Constitution and our country’s history as a common guide. Once the federal government is controlled by the Constitution, then it will not matter who is President, or Congressman, or a Supreme Court Judge. But first and always, we demand from our politicians, a strict interpretation of all constitutions and that this issue alone, be the standard for getting elected and/or staying in power. Next time they swear into office, they better mean it. We must let our federal leaders know, the game is over, we all know your tricks and our children will know and their children will know.
“NO MORE IMPLIED POWERS! NO MORE IMPLIED POWERS!”
There is a bill called HR 450 “Enumerated Powers Act” that could use OUR SUPPORT. This will require Congress to enumerate, not imply, when passing Bills. I like it. You can find it at : HERE. Leave it up those Birchers, God bless ’em.
Rian Hatcher is an Army veteran and lives in Indianapolis. He blogs at Town Hall at The Rooster Crows.