Annotation 44 - Article I

Clause 18. Necessary and Proper Clause


Scope of Incidental Powers

That this clause is an enlargement, not a constriction, of the powers expressly granted to Congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those powers, was established by Marshall's classic opinion in McCulloch v. Maryland. 1642 ''Let the end be legitimate,'' he wrote, ''let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.'' 1643 Moreover, the provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments. 1644  

Operation of Coefficient Clause

Practically every power of the National Government has been expanded in some degree by the coefficient clause. Under its authority Congress has adopted measures requisite to discharge the treaty obligations of the nation; 1645 it has organized the federal judicial system and has enacted a large body of law defining and punishing crimes. Effective control of the national economy has been made possible by the authority to regulate the internal commerce of a State to the extent necessary to protect and promote interstate commerce. 1646 The right of Congress to utilize all known and appropriate means for collecting the revenue, including the distraint of property for federal taxes, 1647 and its power to acquire property needed for the operation of the Government by the exercise of the power of eminent domain, 1648 have greatly extended the range of national power. But the widest application of the necessary and proper clause has occurred in the field of monetary and fiscal controls. Inasmuch as the various specific powers granted by Article I, Sec. 8, do not add up to a general legislative power over such matters, the Court has relied heavily upon this clause in sustaining the comprehensive control which Congress has asserted over this subject. 1649  

Definition of Punishment and Crimes

Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded. 1650 Illustrative of the offenses which have been punished under this power are the alteration of registered bonds, 1651 the bringing of counterfeit bonds into the country, 1652 conspiracy to injure prisoners in custody of a United States marshal, 1653 impersonation of a federal officer with intent to defraud, 1654 conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States, 1655 the receipt by Government officials of contributions from Government employees for political purposes, 1656 advocating the overthrow of the Government by force. 1657 Part I of Title 18 of the United States Code comprises more than 500 sections defining penal offenses against the United States. 1658  

Chartering of Banks

As an appropriate means for executing ''the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies . . . ,'' Congress may incorporate banks and kindred institutions. 1659 Moreover, it may confer upon them private powers, which, standing alone, have no relation to the functions of the Federal Government, if those privileges are essential to the effective operation of such corporations. 1660 Where necessary to meet the competition of state banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business. 1661 The Court will not undertake to assess the relative importance of the public and private functions of a financial institution Congress has seen fit to create. It sustained the act setting up the Federal Farm Loan Banks to provide funds for mortgage loans on agricultural land against the contention that the right of the Secretary of the Treasury, which he had not exercised, to use these banks as depositories of public funds, was merely a pretext for chartering those banks for private purposes. 1662  

Currency Regulations

Reinforced by the necessary and proper clause, the powers '''to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the United States,' and 'to borrow money on the credit of the United States and to coin money and regulate the value thereon . . . ,''' 1663 have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of state banks, 1664 the issuance of treasury notes impressed with the quality of legal tender in payment of private debts 1665 and the abrogation of clauses in private contracts, which called for payment in gold coin, 1666 were sustained as appropriate measures for carrying into effect some or all of the foregoing powers.

Power to Charter Corporations

In addition to the creation of banks, Congress has been held to have authority to charter a railroad corporation, 1667 or a corporation to construct an interstate bridge, 1668 as instrumentalities for promoting commerce among the States, and to create corporations to manufacture aircraft 1669 or merchant vessels 1670 as incidental to the war power.

Courts and Judicial Proceedings

Inasmuch as the Constitution ''delineated only the great outlines of the judicial power . . . , leaving the details to Congress, . . . [t]he distribution and appropriate exercise of the judicial power must . . . be made by laws passed by Congress. . . .'' 1671 As a necessary and proper provision for the exercise of the jurisdiction conferred by Article III, Sec. 2, Congress may direct the removal from a state to a federal court of a criminal prosecution against a federal officer for acts done under color of federal law, 1672 and may authorize the removal before trial of civil cases arising under the laws of the United States. 1673 It may prescribe the effect to be given to judicial proceedings of the federal courts 1674 and may make all laws necessary for carrying into execution the judgments of federal courts. 1675 When a territory is admitted as a State, Congress may designate the court to which the records of the territorial courts shall be transferred and may prescribe the mode for enforcement and review of judgments rendered by those courts. 1676 In the exercise of other powers conferred by the Constitution, apart from Article III, Congress may create legislative courts and ''clothe them with functions deemed essential or helpful in carrying those powers into execution.'' 1677  

Special Acts Concerning Claims

This clause enables Congress to pass special laws to require other departments of the Government to prosecute or adjudicate particular claims, whether asserted by the Government itself or by private persons. In 1924, 1678 Congress adopted a Joint Resolution directing the President to cause suit to be instituted for the cancellation of certain oil leases alleged to have been obtained from the Government by fraud and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. This resolution also authorized the appointment of special counsel to have charge of such litigation. Private acts providing for a review of an order for compensation under the Longshoreman's and Harbor Workers' Compensation Act, 1679 or conferring jurisdiction upon the Court of Claims, after it had denied recovery, to hear and determine certain claims of a contractor against the Government, have been held constitutional. 1680  

Maritime Law

Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law that existed at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction. 1681 This power cannot be delegated to the States; hence, acts of Congress that purported to make state workmen's compensation laws applicable to maritime cases were held unconstitutional. 1682  


[Footnote 1642]   17 U.S. (4 Wheat.) 316 (1819).

[Footnote 1643] Id., 420. This decision had been clearly foreshadowed fourteen years earlier by Marshall's opinion in United States v. Fisher, 6 U.S. (2 Cr.) 358, 396 (1805). Upholding an act which gave priority to claims of the United States against the estate of a bankrupt he wrote: ''The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittance, by bills or otherwise, and to take those precautions which will render the transaction safe.''

[Footnote 1644] Supra, pp. 73-89.

[Footnote 1645] Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252 U.S. 416 (1920).

[Footnote 1646] Supra, pp. 165-167, 203-209.

[Footnote 1647] Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S. 272, 281 (1856).

[Footnote 1648] Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Fox, 94 U.S. 315, 320 (1877).

[Footnote 1649] Supra., pp. 144-159.

[Footnote 1650] United States v. Fox, 95 U.S. 670, 672 (1978); United States v. Hall, 98 U.S. 343, 357 (1879); United States v. Worrall, 2 U.S. (2 Dall.) 384, 394 (1798); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). That this power has been freely exercised is attested by the pages of the United States Code devoted to Title 18, entitled ''Criminal Code and Criminal Procedure.'' In addition numerous regulatory measures prescribe criminal penalties for infractions thereof.

[Footnote 1651] Ex parte Carll, 106 U.S. 521 (1883).

[Footnote 1652] United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850).

[Footnote 1653] Logan v. United States, 144 U.S. 263 (1892).

[Footnote 1654] United States v. Barnow, 239 U.S. 74 (1915).

[Footnote 1655] Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Waddell, 112 U.S. 76 (1884); In re Quarles and Butler, 158 U.S. 532, 537 (1895); Motes v. United States, 178 U.S. 458 , (1900); United States v. Mosley, 238 U.S. 383 (1915). See also Rakes v. United States, 212 U.S. 55 (1909).

[Footnote 1656] Ex parte Curtis, 106 U.S. 371 (1882).

[Footnote 1657] 18 U.S.C. Sec. 2385.

[Footnote 1658] See National Commission on Reform of Federal Criminal Laws, Final Report (Washington: 1970); National Commission on Reform of Federal Criminal Laws, Working Papers (Washington: 1970), 2 vols.

[Footnote 1659] McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

[Footnote 1660] Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 862 (1824). See also Pittman v. Home Owners' Corp., 308 U.S. 21 (1939).

[Footnote 1661] First National Bank v. Follows ex rel. Union Trust Co., 244 U.S. 416 (1917); Missouri ex rel. Burnes National Bank v. Duncan, 265 U.S. 17 (1924).

[Footnote 1662] Smith v. Kansas City Title Co., 255 U.S. 180 (1921).

[Footnote 1663] Legal Tender Cases (Julliard v. Greenman), 110 U.S. 421, 449 (1884).

[Footnote 1664] Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).

[Footnote 1665] Legal Tender Cases (Julliard v. Greenman), 110 U.S. 421 (1884). See also Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457 (1871).

[Footnote 1666] Norman v. B. & O. R. Co., 294 U.S. 240, 303 (1935).

[Footnote 1667] Pacific Railroad Removal Cases, 115 U.S. 1 (1885); California v. Pacific Railroad Company, 127 U.S. 1, 39 (1888).

[Footnote 1668] Luxton v. North River Bridge Co., 153 U.S. 525 (1894).

[Footnote 1669] Clallam County v. United States, 263 U.S. 341 (1923).

[Footnote 1670] Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922).

[Footnote 1671] Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838).

[Footnote 1672] Tennessee v. Davis, 100 U.S. 257, 263 (1880).

[Footnote 1673] Railway Company v. Whitton, 80 U.S. (13 Wall.) 270, 287 (1872).

[Footnote 1674] Embry v. Palmer, 107 U.S. 3 (1883).

[Footnote 1675] Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53 (1825).

[Footnote 1676] Express Company v. Kountze Brothers, 75 U.S. (8 Wall.) 342, 350 (1869).

[Footnote 1677] Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). But see Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

[Footnote 1678] 43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929).

[Footnote 1679] Paramino Co. v. Marshall, 309 U.S. 370 (1940).

[Footnote 1680] Pope v. United States, 323 U.S. 1 (1944).

[Footnote 1681] Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934).

[Footnote 1682] Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. Dawson & Co., 264 U.S. 219 (1924).

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