The Constitution's Necessary and Proper Clause

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 Means

The 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:

  • Tax
  • Regulate commerce
  • Establish naturalization and bankruptcy laws
  • Coin money
  • Punish counterfeiters
  • Establish post offices and roads
  • Regulate patents and copyrights
  • Establish lower courts
  • Establish piracy laws
  • Declare war
  • Raise and support an Army
  • Provide and maintain a Navy
  • Regulate a militia
  • Authority to govern D.C. and other properties for the federal government's purposes

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 Practice

A 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.

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