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Implied Powers - History

Implied Powers - History

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The U.S. Constitution does not directly define or give the president authority to issue presidential actions, which include executive orders, presidential memoranda and proclamations.

Instead, this implied and accepted power derives from Article II of the Constitution, which states that as head of the executive branch and commander in chief of the armed forces, the president “shall take Care that the Laws be faithfully executed.”

With an executive order, the president instructs the government how to work within the parameters already set by Congress and the Constitution. In effect, this allows the president to push through policy changes without going through Congress.

By issuing an executive order, the president does not create a new law or appropriate any funds from the U.S. Treasury only Congress has the power to do both of these things.

Legislative Branch

According to Article I of the Constitution, the legislative branch (the U.S. Congress) has the primary power to make the country’s laws. This legislative power is divided further into the two chambers, or houses, of Congress: the House of Representatives and the Senate.

Members of Congress are elected by the people of the United States. While each state gets the same number of senators (two) to represent it, the number of representatives for each state is based on the state’s population.

Therefore, while there are 100 senators, there are 435 elected members of the House, plus an additional six non-voting delegates who represent the District of Columbia as well as Puerto Rico and other U.S. territories.

In order to pass an act of legislation, both houses must pass the same version of a bill by majority vote. Once that happens, the bill goes to the president, who can either sign it into law or reject it using the veto power assigned in the Constitution.

In the case of a regular veto, Congress can override the veto by a two-thirds vote of both houses. Both the veto power and Congress’ ability to override a veto are examples of the system of checks and balances intended by the Constitution to prevent any one branch from gaining too much power.

Implied Powers - History

1. Introduction

Wednesday 31 March 2021 marks – to the day – the 50th anniversary of the delivery of the ERTA judgment (Case C-22/70, Commission v Council) by the Court of Justice of the European Union – a seminal case in the history of EU law.

On 31 March 1971, in the run-up to Easter, the Court delivered its ERTA ruling that has come to shape a fully-fledged field known as EU external relations law, and the establishment of the implied external powers doctrine, better known as the ERTA doctrine. Within EU law, the existence of ERTA is known to some extent, but half a century after its delivery, the ramifications of the ERTA doctrine are not as well understood as they ought to be beyond the niche field of EU external relations lawyers.

2. An overlooked doctrine of EU law

With due respect to the leading literature on EU law, it collectively under-appreciates how much the case contributed to the EU legal order for its constitutional, internal, and external dimension. More generally, this is striking, as – quoting former judge Allan Rosas – ‘[a]ny meaningful study of the constitutional order of the EU must include the external relations of the Union. In fact, EU external relations law offers one of the best ways of understanding the essential features of the Union legal order in general’. The ERTA judgment, and more specifically, the ERTA doctrine, is just as much an important milestone in the development of the EU legal order as other Court judgments in the earlier years, including judgments like Van Gend en Loos on direct effect, and Costa v ENEL on primacy.

The golden jubilee of ERTA is to be fittingly recalled, and more generally, better deserves to be understood within EU law for a number of reasons. Not only was ERTA the basis for the entire field of EU external relations law, but has been central to the development of internal competence battles to be resolved at the Court of Justice – both between the Member States and EU institutions and also between the EU institutions themselves. In fact, the ERTA case has the honour of being the first ever case in which the Commission and the Council faced off squarely before the Court over a question of competence, and consequently, has contributed to EU constitutional law in similar form.

3. The ERTA case

Within the Council, the Member States were negotiating a position for a proposed international agreement. This eventually led to an agreed position of the Member States on the ratification of an international agreement that came to be known as the European Agreement concerning the work of crews of vehicles engaged in international road transport (ERTA). The Member States were of the view that this international agreement was a product of the Member States, and not the Council itself.

The negotiations leading to the ratification of the international agreement by the Member States saw concern expressed by the Commission that the Council was impinging upon an area – in this case, transport – that would affect internal EU law, given the existence of a prior Regulation in this regard. Thus, the Commission brought proceedings against the Council, on the basis that EU powers were potentially being impinged. In particular, the Council had requested the Commission to propose an amendment to the Regulation so that EU law could comply with the proposed international agreement, thus triggering the Commission’s legal service into action, and bring a case before the Court of Justice

Prior to the judgment of the Court of Justice, the Opinion of Advocate General Dutheillet de Lamothe laid the basis for the reasoning of the Court’s judgment – the Member States’ practice of negotiating an international agreement – ERTA – constituted a threat to the ‘new legal order’ that the EU, as had, at that time, only recently been stated in Van Gend en Loos. Though slightly different from the AG, the Court in ERTA, with Judge Pescatore as juge rapporteur, delivered its judgment, setting out the doctrine of implied external powers.

On the Union’s capacity to enter into international agreements, the Court read beyond the narrow treaty-basis for this, and understood that primary law thus entailed the possibility of a general treaty power. In particular, the Court said ‘regard must be had to the whole scheme of the Treaty no less than to its substantive provisions’, and that such external powers ‘may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions’. Further, the Court said that ‘each time the [Union], with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules’. The effects of what became known as ‘ERTA pre-emption’ here were manifest, with the wings of Member States in international fora being clipped in one foul swoop.

In no uncertain terms, the Court also said that ‘to the extent to which [Union] rules are promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the [Union] institutions, assume obligations which might affect those rules or alter their scope’. This was nothing short of a revolution. At least potentially, this covered the entirety of the EU legal order, and not merely areas fused to the explicit external powers which were stipulated in the Treaty of Rome on the common commercial policy or association agreements. In other words, explicit external powers of the EU were to be supplemented by implied external powers of the EU, possibly even leading to exclusivity.

The Court unambiguously tied the internal aspects of Union law with its external aspect. It said that ‘the implementation of the provisions of the Treaty the system of internal [Union] measures may not therefore be separated from that of external relations’, thus meaning there was no clear method upon which internal and external dimensions can be clearly detached. Put another way, ERTA did something truly remarkable, for where it is established that EU competence is present, such EU competence has primacy over that of Member State’s external acts.

The Court was unwilling to accept a view of the Member States that the Council was to be a mere secretariat for their cooperation in international relations of their own individual accord. To sustain an intergovernmental view of the Council, as the Council tried to plead, would have relegated any true sense of supranationality about the nature of EU law. ERTA thus represented a further step away from the EU being a mere intergovernmental organisation, and being a more complete legal order in its own right. The external powers of the Member States individually, and collectively as the Council, were limited and were thereafter, to function within the EU system of government.

In sum, the ERTA case made clear that international commitments undertaken by Member States could not have the potential to impinge on commitments the Member States have undertaken as regards the Union, and laid the basis for the EU to become a global legal actor.

4. Celebrating ERTA

The ERTA doctrine and the case as a whole is also a key case in understanding several fields of EU law – EU constitutional law, EU institutional law, and EU external relations law. The contemporary evidence of ERTA’s ramifications are easily seen, by reference to just a few select examples.

Firstly, the Union post-ERTA had the possibility to negotiate and conclude international agreements in an array of areas and policy fields. This allowed for affirmative safeguards on the effectiveness of EU law. Secondly, ERTA had an impact on who negotiated international agreements, which has dramatically changed over time. In the case, the Commission wanted to attend the negotiations, but the Member States ignored such requests, and did not even keep the Commission informed. By contrast, in the modern era, it is the Commission who ordinarily conducts the negotiations for international agreements within the meaning of Article 218 TFEU – be it ‘EU-only’ or mixed international agreements. Thirdly, ERTA laid the basis for potentially making the implied external powers doctrine one concerning exclusive competence of the Union. As the EU legislates internally, that in turns means there is more exclusive competence for the EU.

A codification of the basic ERTA doctrine was attempted with the Treaty of Lisbon, and seen in Article 3(2) TFEU and Article 216(1) TFEU. Despite this attempt at codification being far from perfect, and certainly dubious as regards catching the entirety of the case law in EU external relations law up to that point, this attempted (yet botched) codification, by cementing it into the EU Treaties, can be interpreted as clear acceptance by the Member States of the judge-made ERTA doctrine of implied external powers of the EU. Neither Van Gend en Loos or Costa v ENEL have ever been on the end of such clear acceptance.

In the post-Lisbon era, debate and litigation continues before the Court of Justice about the state of the implied external powers doctrine arising from ERTA, as seen in Broadcasting Organisations (C-114/12), Opinion 1/13, COTIF I (C-600/14), and Opinion 2/15, amongst others. The ERTA doctrine will continue to see litigation brought on foot of the evolving application of the doctrine to new situations. Rightly, ERTA is to be celebrated half a century on, and needs better recognition within EU law as being one of the true landmarks in the legal development of Europe.

What should one give to such an influential judgement for its 50th birthday? Together with over 100 EU law specialists (academic scholars, judges, agents of institutions and Member States, and legal practitioners in the field of EU external relations law), we decided that a book containing analyses of cases that followed ERTA, which further defined EU external relations law, would be the perfect gift.

The Implied Powers of Congress

The expressed powers of Congress are listed in Article I of the U.S. Constitution (since they're listed out, they're also called the enumerated powers). Congress also has implied powers, which are based on the necessary and proper clause, or elastic clause. This is a provision in the Constitution which gives Congress right to make any laws needed to carry out their expressed powers. Congressional power has grown over several centuries, bolstered by Supreme Court decisions

The Constitution gives expressed powers to Congress in Article 1, Section 8.

In McCulloch v. Maryland, the Supreme Court under Chief Justice John Marshall holds that the powers to tax, borrow, and coin money give Congress the implied power to establish a national bank. The First Bank of the United States under Alexander Hamilton had closed the opening of a second bank was challenged on grounds of constitutionality.

Gibbons v. Ogden is the first commerce clause case to reach the Supreme Court. The powers of Congress are expanded, as part of their ability to regulate interstate commerce this includes regulations on transit, shipping, industry, and more. This is another important case overseen by Justice Marshall.

The U.S. government issues its first legal tender notes, which are popularly called greenbacks.

In Hepburn v. Griswold the Supreme Court rules that the Constitution does not authorize the printing of paper money.

The Court reverses its position on the printing of paper money and holds that issuing paper money is a proper use of the currency power in the Legal Tender cases. The decision in Juliard v. Greenman (1884) reaffirms this holding.

The Sherman Antitrust Act, based on the commerce power, regulates monopolies and other practices that limit competition.

The Wagner Act, based on the commerce power, recognizes labor's right to bargain collectively.

The Supreme Court upholds the Social Security Act of 1935 as a proper exercise of the powers to tax and provide for the general welfare in Steward Machine Co. v. Davis and Helvering v. Davis.

The Interstate and National Highway Act, based on the commerce and war powers, provides for a national interstate highway system.

The Supreme Court holds the public accommodations provisions of the Civil Rights Act of 1964 as a valid exercise of the commerce power in Heart of Atlanta v. United States.

Congress amends the Social Security Act of 1935 to create Medicare, which covers hospital and other health-care costs of the elderly.

With the War Powers Resolution of 1973, Congress claims the right to restrict the use of American forces in combat when a state of war does not exist.

The Americans with Disabilities Act, based on the commerce power, prohibits discrimination against the physically impaired.

In United States v. Lopez, the Court strikes down the Gun-Free School Zone Act of 1990 on the grounds that the federal government invades reserved powers of the states with this legislation.

National Emergencies Act

In 1976, Congress enacted the National Emergencies Act, codified at 50 U.S.C. §§ 1601-51, in response to the continued existence of four declared national emergencies, the oldest of which had been in place for forty years. The Act did not revoke the outstanding emergency declarations, but instituted an expiration date on existing declared emergencies, barring further action. It also provided for a variety of termination methods, including the automatic termination of a national emergency upon its anniversary every year, if the President does not act to renew it.

For example, the state of emergency declared in Proclamation 7463 in response to the September 11 terrorist attacks was due to terminate most recently on September 14, 2016. However, President Obama continued the state of emergency past that date by following procedure established in the National Emergencies Act.

The four national emergencies that the Act was meant to address were:1

  • The 1933 banking crisis, in which President Roosevelt renewed the national emergency declaration of the Act of March 9, 1933 via Executive Order 6102 and prohibited the hoarding of gold.
  • The 1950 Korean War communism scare, in which President Truman declared a national emergency via Proclamation 2914.
  • The 1970 postal workers strike, in which President Nixon declared a national emergency via Proclamation 3972 and threatened to delivery mail in New York using the National Guard.
  • The 1971 inflation emergency, in which President Nixon declared a national emergency via Proclamation 4074 and imposed a temporary surcharge on imports to "strengthen the international economic position of the United States."

Current States Rights Issues

As an inherent byproduct of federalism, questions of states’ rights will undoubtedly continue to be a part of American civic debate for years to come. Two highly visible examples of current states’ rights issues include marijuana legalization and gun control.

Marijuana Legalization

While at least 10 states have enacted laws allowing their residents to possess, grow, and sell marijuana for recreational and medical use, the possession, production, and sale of marijuana continues to be a violation of federal drug laws. Despite previously rolling back an Obama-era hands-off approach to prosecuting violations of federal marijuana laws in pot-legal states, former Attorney General Jeff Sessions clarified on March 8, 2018 that federal law enforcement officers would go after dealers and drug gangs, rather than casual users.

Gun Control

Both the federal and state governments have been enacting gun control laws for over 180 years. Due to an increase in incidents of gun violence and mass shootings, state gun control laws are now often more restrictive than federal laws. In these cases, gun rights advocates often argue that the states have actually exceeded their rights by ignoring both the Second Amendment and the Supremacy Clause of the Constitution.

In the 2008 case of District of Columbia v. Heller, the U.S. Supreme Court ruled that a District of Columbia law completely banning its citizens from possessing handguns violated the Second Amendment. Two years later, the Supreme Court ruled that its Heller decision applied to all U.S. states and territories.

Other current states’ rights issues include same-sex marriage, the death penalty, and assisted suicide.

Examples of Inherent Powers

Powers of the President: The inherent powers of the U.S. President are not defined clearly. The executive actions of the President undertaken in the capacity of, and as Commander-in-Chief of the armed forces for national security, is an inherent power for example. Also, the power to pardon a convict, although mentioned in the Constitution, is a power that cannot be overridden by the Congress. Thus, it can be seen as an inherent power.

Often left to be a disputed issue, is the question of ‘what comes under the purview of inherent power’? There was ample criticism launched against the executive actions of Presidents in the past (Abraham Lincoln and Harry S. Truman) and more recently during the presidency of George W. Bush. The authority to establish military commissions, to decide their rules and procedures, shifting a suspect from the U.S. to another country for interrogation (or ‘extraordinary rendition’), or authorizing the National Security Agency for the eavesdropping program were some issues of debate during the Bush administration. It is argued that the President has such inherent authority, under the Commander-in-Chief Clause. Fourth amendment and the Due Process clause, however, contradict this authority.

Powers of the Congress

Powers of the United States Congress are primarily classified into three categories:

i) enumerated (powers of the Congress written in the Constitution)

ii) implied (powers that are generally stated in the Constitution, but not in detail)

iii) inherent (powers, usually unwritten, that exist by the authority of it being a government)

Examples of the inherent powers include:

Waging a war: Declaration of a war is an implied power. Waging a war, hence, becomes an inherent power. As acting on behalf of the state as a sovereign authority, the aim is of defending the nation. Although, waging of war is important, it is also significant to effect a transition from war to peace. The power translates into the responsibility to prevent an immediate recurrence of any struggle too.

Power of exclusion of aliens or deportation: The Congress can decide as to the exclusion of aliens from the country, or also establish terms and conditions for their entry into the country. This particularly relates to the principle of sovereignty of the nation.

Conduct of foreign affairs: All matters concerning international treaties, diplomatic relations with neighboring countries, decisions regarding recognition to newly formed nations, monitoring the country’s borders, and other foreign affairs are determined by the Congress.

The purpose or intent behind every indirect allocation of inherent power should be the guiding principle for a system of good governance. For example, the war power is mainly attributed to the federal government but it is also known to be shared by the legislative and executive branches of the government. Inherent powers should not be conflated with exclusivity of powers in all cases.


Two important doctrines of constitutional law—that the Federal Government is one of enumerated powers and that legislative powers may not be delegated—are derived in part from this section. The classic statement of the former is by Chief Justice Marshall in McCulloch v. Maryland: “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge that principle is now universally admitted.”34 That, however, “the executive power” is not confined to those items expressly enumerated in Article II was asserted early in the history of the Constitution by both Madison and Hamilton and is found in decisions of the Court35 a similar latitudinarian conception of “the judicial power of the United States” was voiced in Justice Brewer’s opinion for the Court in Kansas v. Colorado.36 But, even when confined to “the legislative powers herein granted,” the doctrine is severely strained by Chief Justice Marshall’s broad conception of some of these powers, as he described them in McCulloch v. Maryland. He asserts that “[t]he sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government”37 he characterizes “the power of making war, or levying taxes, or of regulating commerce” as “great substantive and independent power[s]”38 and he declares that the power conferred by the “necessary and proper” clause embraces all legislative “means which are appropriate” to carry out the legitimate ends of the Constitution, unless inconsistent “with the letter and spirit of the constitution.”39

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of “resulting powers,” which are those that “rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated.”40 Story’s reference is to Marshall’s opinion in American Ins. Co. v. Canter,41 that “the constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.”42 And from the power to acquire territory, Marshall continues, arises, as “the inevitable consequence,” the right to govern it.43

Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the “rights expressly given, and duties expressly enjoined” by the Constitution44 the power to impart to the paper currency of the government the quality of legal tender in the payment of debts45 the power to acquire territory by discovery46 the power to legislate for the Indian tribes wherever situated in the United States47 the power to exclude and deport aliens48 and to require that those who are admitted be registered and fingerprinted49 and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. Thus, in United States v. Curtiss-Wright Export Corp.,50 decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated.

Yet, for the most part, these holdings do not, as Justice Sutherland suggested, directly affect “the internal affairs” of the nation they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those that have taken place under cover of the doctrine—the vast expansion in recent years of national legislative power in the regulation of commerce among the states and in the expenditure of the national revenues. Marshall laid the ground for these developments in some of the language quoted above from McCulloch v. Maryland.


34 17 U.S. (4 Wheat.) 316, 405 (1819). 35 See discussion under Article II, § 1, cl. 1, Executive Power: Theory of the Presidential Office, infra. 36 206 U.S. 46, 82 (1907). 37 17 U.S. (4 Wheat.) at 407. 38 17 U.S. at 411. 39 17 U.S. at 421. 40 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1256 (1833). See also id. at 1286 and 1330. 41 26 U.S. (1 Pet.) 511 (1828). 42 26 U.S. at 542. 43 26 U.S. at 543. 44 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616, 618–19 (1842). 45 Juilliard v. Greenman, 110 U.S. 421, 449–450 (1884). See also Justice Bradley’s concurring opinion in Knox v. Lee, 79 U.S. (12 Wall.) 457, 565 (1871). 46 United States v. Jones, 109 U.S. 513 (1883). 47 United States v. Kagama, 118 U.S. 375 (1886). 48 Fong Yue Ting v. United States, 149 U.S. 698 (1893). 49 Hines v. Davidowitz, 312 U.S. 52 (1941). 50 299 U.S. 304 (1936).

Implied Powers Examples Involving the First Bank of the United States

One of the famous examples of implied powers involving the U.S. Supreme Court is the case of McCulloch v. Maryland. The Court decided this case in 1819. Here, the United States government needed to pay off the debt that the nation acquired during the War of 1812. Before the war, the First Bank of the United States would do this. However, the permission, or charter, that allowed the bank to do this had expired in 1811.

In 1816, Congress authorized a charter for the Second Bank of the United States. The bank opened its first branch in Philadelphia, then a second in Baltimore. James McCulloch worked as a cashier for the Baltimore branch. When the state sought to collect the taxes imposed on the Bank, McCulloch refused to pay. The state then sued him, demanding that the bank pay its taxes in full.

Trial and Appeal

After the conclusion of the trial in the matter, the trial court ruled in favor of the state of Maryland. McCulloch appealed, however the appellate court upheld the decision. McCulloch then filed for a writ of certiorari for the Supreme Court to review the case, which it did in February of 1819. The Court then had to decide whether Congress had the authority to create the bank in the first place. If so, did the state of Maryland then have the authority to levy a tax against the federal bank?

Supreme Court Ruling

The Court ultimately ruled, unanimously, in favor of McCulloch. The Court found that Congress was within its power to create the bank, and that the bank was fulfilling its duties in accordance with the rules of the Constitution. Further, the Court ruled that the tax the state of Maryland had levied against the bank was unconstitutional. By taxing the bank, the state of Maryland was, in fact, levying a tax against every U.S. citizen, which no state has the authority to do.

Decision Excerpt

Said the Court in its Decision:

“That the power of taxing it by the States may be exercised so as to destroy it is too obvious to be denied. But taxation is said to be an absolute power which acknowledges no other limits than those expressly prescribed in the Constitution, and, like sovereign power of every other description, is entrusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State, in the article of taxation itself, is subordinate to, and may be controlled by, the Constitution of the United States. How far it has been controlled by that instrument must be a question of construction.

In making this construction, no principle, not declared, can be admissible which would defeat the legitimate operations of a supreme Government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the Constitution.”

Implied Powers of Congress: A Constitutional Controversy

The United States Constitution is an incredibly important document that was designed to protect the freedoms of the inhabitants of the newly formed country, and to lay out various aspects of how it should be run. The Constitution has many parts, consisting of a preamble, seven articles, and the various amendments, or additions, that have been made over time. The articles make up the main body of the Constitution, and describe, in detail, how the government works. Discussed in these articles are the powers of the President and Vice President (Article 2), how the judicial branch functions (Article 3), and the role of the legislative branch (Article 1), which we will be focusing on today.

Though Article 1 of the Constitution covers many aspects of the legislative branch, and lays out many of them specifically, its the very non-specific, implied powers of Congress that we are discussing today. Congress’ implied powers are hazy, at best, and have been controversial throughout history. Today we are discussing some of these powers, explaining what they mean, and how they may be exercised. If you’re a little rusty on the ins and outs of this document, this course on the principles of the Constitution should refresh your memory.

Watch the video: What Is the Executive Branch of the. Government? History (July 2022).


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