Necessary and Proper Clause

The necessary and proper clause (also known as the elastic clause, the basket clause, the coefficient clause, and the sweeping clause ) refers to a provision, in Article One of the United States Constitution at section eight, clause 18, which addresses implied powers of Congress.

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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.

Interpretation

Like many others in the Constitution, the necessary and proper clause is open to interpretation, and reasonable minds can disagree over what laws are "necessary and proper" for Congress to exercise the express powers granted to it by the Constitution. Not surprisingly then, its interpretation has been controversial, especially during the early years of the republic. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers ("foregoing powers"). Others argue that the elastic clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers. It is often known as the elastic clause because of the great amount of leeway in interpretation it allows; depending on the interpretation, it can be used to "stretch" or expand the powers of Congress, or allowed to "contract," limiting Congress.

The chartering of the Bank of the United States led to a defining legal interpretation of the Necessary and Proper Clause. Although the Constitution does not explicitly give Congress the authority to establish a national bank, the move was justified by proponents as a "necessary and proper" exercise of Congress' authority to make laws regulating interstate commerce under the commerce clause. When George Washington asked Alexander Hamilton to defend the constitutionality of the measure against the protests of Thomas Jefferson, James Madison, and Attorney General Edmund Randolph, Hamilton produced a classic statement for implied powers. Hamilton, a Federalist, argued that the necessary and proper clause granted Congress the power to charter a bank, while Jefferson, a Democratic-Republican, interpreted the Constitution more strictly, believing Congress' power limited to the enumerated powers. The Federalists, as the majority party, were able to pass legislation establishing the national bank.

The national bank was controversial, and the state of Maryland later attempted to impede operation of a branch of the bank by imposing a tax on all notes of banks not chartered in Maryland. Though the law was generally applicable, the U.S. Bank was the only out-of-state bank then existing in Maryland, and the law was generally recognized as specifically targeting the U.S. Bank. The U.S. bank's refusal to pay the tax led to the Supreme Court case McCulloch v. Maryland, in which the court held that because the Congress has the power to control national economic policy, creating a national bank is necessary and proper to carry out its duties. Chief Justice John Marshall, writing for the majority, also held that because federal laws have supremacy over state laws, Maryland had no power to interfere with the bank's operation by taxing it.

The clause has been paired with the Commerce Clause in particular to provide the constitutional basis for a wide variety of laws. For example, legislation making it a federal crime to transport a kidnapped person across state lines is justified by considering the act to be commerce. A series of Supreme Court decisions resulting in the desegregation of private businesses, such as hotels and restaurants, was supported on the basis that these business establishments, although not directly engaged in interstate commerce, no doubt had an effect on it. Since the New Deal the Supreme Court has been reluctant to limit the scope of authority allowed under the combination of these clauses. United States v. Lopez was the first modern case finding limits to Congress's authority in this regard.

The term "necessary and proper clause" comes from the 1926 Supreme Court case 'Lambert v. Yellowley', 272 U.S. 581, 596 (1926). Justice Brandeis, writing for the majority, referred to it as the "Necessary and Proper clause." The phrase became the label of choice and was universally adopted by the courts and received Congress' imprimatur. (see the heading of 50 U.S.C. § 1541(b) (1994) (purpose and policy of war powers resolution)).

An important point to keep in mind is that the Necessary and Proper Clause does not require that all federal laws be necessary and proper. It has always been understood that federal laws that are enacted directly pursuant to one of the express enumerated powers need not comply with the Necessary and Proper Clause. As Chief Justice Marshall put it, this 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." McCulloch v. Maryland, 17 U.S. 316, 420 (1819) quoted in Printz v. United States, 521 U.S. 898, 942 n. 2 (1997) (Stevens, J., dissenting, joined by Souter, Ginsburg & Breyer, JJ.).

See also

• Jefferson