The specific powers and duties of the U.S. Congress are enumerated in several places in the Constitution. The most important listing of these powers is in Article I, Section 8, which identifies in 17 paragraphs the many important powers of Congress. The last paragraph grants to Congress the flexibility to create laws or otherwise to act where the Constitution does not give it the explicit authority to act. This clause is known as the Necessary and Proper Clause, although it is not a federal power, in itself. Show The Necessary and Proper Clause allows Congress "To make all Laws which shall be necessary and proper for carrying into Execution the [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Article I, Section 8, Clause 18). It is also sometimes called the "elastic clause." It grants Congress the powers that are implied in the Constitution, but that are not explicitly stated. That is why the powers derived from the Necessary and Proper Clause are referred to as implied powers. The correct way to interpret the Necessary and Proper Clause was the subject of a debate between Secretary of the Treasury ALEXANDER HAMILTON and Secretary of State THOMAS JEFFERSON. Hamilton argued for an expansive interpretation of the clause. His view would have authorized Congress to exercise a broad range of implied powers. On the other hand, Jefferson was concerned about vesting too much power in any one branch of government. He argued that "necessary" was a restrictive adjective meaning essential. Jefferson's interpretation would have strengthened STATES' RIGHTS. GEORGE WASHINGTON and JAMES MADISON favored Hamilton's more flexible interpretation, and subsequent events helped to foster the growth of a strong central government. Their debate over the Necessary and Proper Clause between Hamilton and Jefferson came to a head in a landmark U.S. Supreme Court case, MCCULLOCH V. MARYLAND, 17 U.S. 316 (1819). McCulloch v. Maryland was the first case in which the U.S. Supreme Court applied the Necessary and Proper Clause. Some constitutional historians believe that the opinion in McCulloch v. Maryland represents an important act in the ultimate creation of the U.S. federal government. The case involved the question of whether Congress had the power to charter a bank. At first, this question might seem inconsequential, but underlying it are larger questions that go to the foundations of constitutional interpretation. To some extent, they are still debated. The First Bank of the United States was established in 1791, but it had failed in 1811 due to a lack of support from Congress. Inflation in the years following the WAR OF 1812 compelled President James Madison and Congress to establish a new national bank, which was chartered in 1816. The new bank established branches throughout the states. Many state-chartered banks resented the cautious policies of the BANK OF THE UNITED STATES. Their directors sought assistance from their state legislatures to restrict the operations of the Bank of the United States. Accordingly, Maryland imposed a tax on the bank's operations, and when James McCulloch, a cashier of the Baltimore branch of the Bank of the United States, refused to pay the Maryland tax, the issue went to court. The questions before the U.S. Supreme Court involved whether the state or national government held more power. Central to this issue was the Court's interpretation of the Necessary and Proper Clause. The Court held that the state of Maryland could not undermine an act of Congress. The states were subordinate to the federal government. This ruling established that Congress could use the Necessary and Proper Clause to create a bank even though the Constitution does not explicitly grant that power to Congress. Chief Justice JOHN MARSHALL's opinion not only endorsed the constitutionality of the bank, but went on to uphold a broad interpretation of the federal government's powers under the Constitution. The case quickly became the legal cornerstone of subsequent expansions of federal power.
While the Constitution explicitly states certain congressional powers, the Constitution also gives Congress the implied power to carry out its enumerated powers. The following explains what enumerated powers Congress has and what implied authority Congress has to carry out its enumerated powers. Article I, Section 8, Clause 18 is commonly referred to as the Necessary and Proper Clause. According to this provision of the Constitution, Congress can pass laws necessary for it to exercise its enumerated powers through the passage of "necessary and proper" legislation. What the Necessary and Proper Clause Says"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." What It MeansThe United States Constitution gives Congress certain enumerated powers. "Enumerated" means that the Constitution explicitly states powers that Congress has. Congress's enumerated powers include the power to:
The necessary and proper clause gives Congress more latitude to "play in the joints." They can pass legislation in other areas if it helps to further the responsibilities laid out in their enumerated powers. The Necessary and Proper Clause in PracticeA seminal Supreme Court case of American jurisprudence is McCulloch v. Maryland. In McCulloch, the Court explained how Congress is to apply its power given through the Necessary and Proper Clause. Chief Justice John Marshall explained in his opinion that "[i]f the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted that end, and which are not prohibited, may constitutionally be employed to carry it into effect." The Court held that Congress has the authority to pass any law that would allow it to fully exercise its enumerated powers as long as it does not violate any other provision of the Constitution. In McCulloch, the Court gave Congress the power to establish a national bank through the Necessary and Proper Clause based on its enumerated power to tax and spend. As a result of McCulloch, Congress can now enact legislation that it deems necessary and appropriate to accomplish a goal of an enumerated power, so long as the legislation is constitutional. The constitutionality of the actions of Congress is the subject of much debate. However, the precedent has given Congress a broad amount of power and freedom to determine necessary. Related Resources
The Necessary and Proper Clause, also known as the Elastic Clause,[1] is a clause in Article I, Section 8 of the United States Constitution:
The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. According to the Articles of Confederation, "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated" (emphasis added). Thus, the Continental Congress had no powers incidental to those "expressly delegated" by the Articles of Confederation.[2] By contrast, the Necessary and Proper Clause expressly confers incidental powers upon Congress, which no other clause in the Constitution does so by itself.[2] The draft clause provoked controversy during discussions on the proposed constitution, and its inclusion became a focal point of criticism for those opposed to ratification of the constitution. Anti-Federalists expressed concern that the clause would grant the federal government boundless power, but Federalists argued that the clause would permit only execution of powers that had been granted by the constitution. Alexander Hamilton spoke vigorously for the second interpretation in Federalist No. 33. At the time, James Madison concurred with Hamilton and argued in Federalist No. 44 that without the clause, the constitution would be a "dead letter." At the Virginia Ratifying Convention, Patrick Henry took the opposing view by saying that the clause would lead to limitless federal power, which would inevitably menace individual liberty.[3] For several decades after the Constitution was ratified, interpretation of the Necessary and Proper Clause continued to be a powerful bone of contention between the Democratic-Republican Party, the Federalist Party, and several other political parties. The first practical example of that contention came in 1791, when Hamilton used the clause to defend the constitutionality of the new First Bank of the United States, the first federal bank in the new nation's history. Concerned that monied aristocrats in the North would take advantage of the bank to exploit the South, Madison argued that Congress lacked the constitutional authority to charter a bank. Hamilton countered that the bank was a reasonable means of carrying out powers related to taxation and the borrowing of funds and claimed that the clause applied to activities that were reasonably related to constitutional powers, not only those that were absolutely necessary to carry out said powers. To embarrass Madison, his contrary claims from the Federalist Papers were read aloud in Congress:[4] No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included. Eventually, Southern opposition to the bank and to Hamilton's plan to have the federal government assume the war debts of the states was mollified by the transfer of the nation's capital from its temporary seat in Philadelphia to Washington, DC,a more southerly permanent seat on the Potomac, and the bill, along with the establishment of a national mint, was passed by Congress and signed by President George Washington.[5] The clause, as justification for the creation of a national bank, was put to the test in 1819 during McCulloch v. Maryland[6] in which Maryland had attempted to impede the operations of the Second Bank of the United States by imposing a prohibitive tax on out-of-state banks, the Second Bank of the United States being the only one. In the case, the Court ruled against Maryland in an opinion written by Chief Justice John Marshall, Hamilton's longtime Federalist ally. Marshall stated that the Constitution did not explicitly give permission to create a federal bank, but it conferred upon Congress an implied power to do so under the Necessary and Proper Clause so that Congress could realize or fulfill its express taxing and spending powers. The case reaffirmed Hamilton's view that legislation reasonably related to express powers was constitutional. Marshall wrote:
McCulloch v. Maryland[6] held that federal laws could be necessary without being "absolutely necessary" and noted, "The clause is placed among the powers of Congress, not among the limitations on those powers." At the same time, the Court retained the power of judicial review established in Marbury v. Madison by declaring that it had the power to strike down laws that departed from those powers: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted [sic] to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." As Marshall put it, the Necessary and Proper Clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted."[7][8] Without that clause, there would have been a dispute about whether the express powers imply incidental powers, but the clause resolved that dispute by making those incidental powers be expressed, instead of implied.[8] In a related case after the American Civil War, the clause was employed, in combination with other enumerated powers, to give the federal government virtually complete control over currency.[9] The clause has been paired with the Commerce Clause to provide the constitutional basis for a wide variety of federal laws. For instance, various reforms involved in the New Deal were found to be necessary and proper enactments of the objective of regulating interstate commerce.[10] Indeed, the influence of the Necessary and Proper Clause and its broader interpretation under McCulloch v. Maryland (1819) in American jurisprudence can be seen in cases generally to be thought to involve simply the Commerce Clause. In Wickard v. Filburn (1942), the Supreme Court upheld a federal statute making it a crime for a farmer to produce more wheat than was allowed under price and production controls, even if the excess production was for the farmer's own personal consumption. The Necessary and Proper Clause was used to justify the regulation of production and consumption.[11] Also, in addition to both clauses being used to uphold federal laws that affect economic activity, they also were used to justify federal criminal laws as well.[12] For example, Congress in the Federal Kidnapping Act (1932) made it a federal crime to transport a kidnapped person across state lines because the transportation would be an act of interstate activity over which the Congress has power. It has also provided justification for a wide range of criminal laws relating to interference with the federal government's rightful operation, including federal laws against assaulting or murdering federal employees.[citation needed] In National Federation of Independent Business v. Sebelius (2012), the Supreme Court ruled that the individual mandate of the Patient Protection and Affordable Care Act cannot be upheld under the Necessary and Proper Clause. Chief Justice John Roberts ruled that the mandate cannot "be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act's other reforms. Each of this Court's prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.... The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise lie outside it. Even if the individual mandate is "necessary" to the Affordable Care Act's other reforms, such an expansion of federal power is not a "proper" means for making those reforms effective."[13] According to its proponents, the ruling returns the clause to its original interpretation, outlined by John Marshall in McCulloch v. Maryland. According to David Kopel, the clause "simply restates the background principle that Congress can exercise powers which are merely 'incidental' to Congress's enumerated powers."[14] The specific term "Necessary and Proper Clause" was coined in 1926 by Associate Justice Louis Brandeis, writing for the majority in the Supreme Court decision in Lambert v. Yellowley, 272 U.S. 581 (1926), which upheld a law restricting medicinal use of alcohol as a necessary and proper exercise of power under the 18th Amendment, which established Prohibition. The phrase has become the label of choice for this constitutional clause. It was universally adopted by the courts and received Congress's imprimatur in Title 50 of the United States Code, Section 1541(b) (1994), in the purpose and policy of the War Powers Resolution.[15]
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What does the Necessary and Proper Clause in the Constitution imply about the powers of Congress?
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