Inherent Powers

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INHERENT POWERS

In theory the Constitution establishes the institutions of the national government and vests those institutions with their responsibilities. Such a government is one of delegated powers. Some of these powers are expressed, others are implied. But all powers of the government—expressed and implied—are delegated powers originating in deliberate acts of the sovereign people. This theory cannot successfully deny that the Constitution may in fact succumb to "necessity," or prove inadequate in contingencies beyond human foresight and control. Nor does it deny that the document's terms (like "due process" and "executive power") are open to construction in light of broader ideas and needs. It simply means that to be lawful, a move of the government must fall within a range permitted by arguable interpretations of constitutional language and tradition.

Constitutional theory can admit a notion of "inherent power" in a sense of implied power as in inherent powers of executive privilege and removal of certain administrative appointees. But constitutional theory cannot admit the doctrine of "inherent power" that finds governmental powers beyond those that have been delegated expressly or by implication on the argument that a government must have certain powers before it can be considered a real government. This strong sense of inherent power is the subject here.

A doctrine of inherent power is frequently asserted in connection with a right to national self-preservation, which, as an inherent power, would differ from implied powers, like an implied power of national defense. Looked upon as an implied but still delegated power, a power of national defense can be derived from such expressed constitutional provisions as authorizing Congress to raise, support, and govern military and naval forces, and to declare war. Questions about the scope of an implied power of national defense would have to be answered in ways that would retain its status as part of a greater whole. A constitutionally derived power of national defense would be consistent with the separation of powers, individual rights, and other provisions, or arguable interpretations thereof. By contrast, inherent powers need not be consistent with other constitutional provisions; asserting them does not require the interpretive adjustments needed to make something fit into a greater whole. A power to suspend elections and declare a dictatorship during a foreign invasion might become a practical necessity, but it could not be considered an implied power of national defense because no plausible interpretation of the Constitution could make room for such a power.

Appeals to inherent power should be distinguished from appeals to higher law to which the Constitution might be open. The latter provide arguments for interpreting the Constitution in certain ways. The former propose reasons that might justify violating or suspending the Constitution. Historically, the former usually invoke considerations of "necessity" or "self-preservation" as reasons for ignoring the separation of powers and the bill of rights. These considerations have surfaced in decisions to put innocent Americans in war-time concentration camps and to deny that the government has an obligation to treat aliens fairly. They have been used to rationalize congressional abdications of responsibility, especially in foreign affairs. They therefore imply the supremacy of material safety over constitutional ideals and structures, even over the Constitution itself as a product of deliberative reason.

A strong doctrine of inherent power may have seemed necessary to constitutional theory as a way to circumvent artificially narrow conceptions of national power originating largely in a states ' rights parochialism. But this is no longer the problem it used to be. Understanding national powers in terms of the broad ends to which they point—national defense, for example,—reduces the need for a doctrine of inherent power—unless precisely what is sought is justification for ignoring the Constitution.

Sotirios A. Barber
(1986)