The Constitution's Necessary and Proper Clause

Article I of the United States Constitution outlines the power of the federal legislature. First, it grants all federal lawmaking power to Congress. Article I, Section 1 states:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

It then gives Congress certain enumerated powers. "Enumerated" means a power or responsibility we can find in the text of the Constitution. For example, Article I, Section 8, Clause 1 states:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States...”

Congress's enumerated powers include the power to:

• Tax
• Regulate interstate commerce
• Establish naturalization and bankruptcy laws
• Coin money
• Establish post offices and roads
• Regulate patents and copyrights
• Establish lower courts
• Declare war

The necessary and proper clause gives Congress more latitude to "play in the joints." Lawmakers can pass legislation in other areas if it helps to further the responsibilities outlined in Article I.

What Is the “Necessary and Proper” Clause?

Article I, Section 8, Clause 18 is commonly referred to as the necessary and proper clause. It states:

"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 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. Delegates at the 1787 Constitutional Convention called it the “sweeping clause.” Some also refer to it as the “elastic clause.”

The Articles of Confederation, the precursor to the Constitution, specifically prohibited this type of implied power. Federal power was limited to only those powers “expressly delegated to the United States.”

Because the federal government had very little power under the Articles, Congress was unable to step in when the newly formed United States experienced massive inflation and infighting between state governments. The Framers

In Federalist No. 33, Alexander Hamilton wrote in favor of including the idea of implied powers in the Constitution:

“What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution?

...

And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.”

James Madison advocated for “some obvious and precise affinity” between a legislative act and Congress’s enumerated powers.

The Necessary and Proper Clause in Practice

For more than 200 years, the Supreme Court has been tasked with the interpretation of the necessary and proper clause.

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.

In McCulloch, the Court allowed the legislature to establish a national bank through the necessary and proper clause based on Congress’s powers to tax and spend.

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.

As a result, 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 Congress's actions is the subject of much debate. However, the precedent set by McCulloch has given Congress a broad amount of power and freedom to determine what is necessary.