Elastic Clause

The Elastic Clause, also known as the “Necessary and Proper Clause,” is perhaps the most important clause in the U.S. Constitution, though it is also the most controversial. The Clause gives Congress the authority to use powers not explicitly named in the Constitution, if they are necessary in order to perform its responsibilities as outlined in the Constitution. In other words, Congress may do whatever is “necessary and proper” to do its job. To explore this concept, consider the following Elastic Clause definition.

Definition of Elastic Clause

Noun

1. A clause within the United States Constitution that grants Congress the power to pass whatever laws are deemed “necessary and proper” to help Congress to carry out the enumerated powers.

Origin

1788         Ratification of the U.S. Constitution (the term Elastic Clause is an Americanism adopted in the early 20th century)

What is the Elastic Clause

Located in Article I, Section 8, Clause 18 of the U.S. Constitution, the Elastic Clause is so named because of the flexibility it gives to Congress when it comes to exercising its enumerated powers. Like an elastic band, the Clause can be metaphorically “stretched” to meet Congress’ needs, or “contracted” to rein in Congress, if necessary. The Elastic Clause specifically states that Congress shall have the authority …

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers …”

Other names for the Elastic Clause include the “Basket Clause,” the “Coefficient Clause,” and the “Sweeping Clause.”

Enumerated Powers

Enumerated powers are the backbone of Congressional authority, as the Constitution specifically lists what Congress is permitted to do, and what authority is reserved for the individual states, and the people. Both Congress and the Supreme Court are notorious for their broad interpretations of just what are considered to be enumerated powers. It is widely held that Article I, Section 8 contains the complete list of enumerated powers, but in truth, there are a total of 30 – 35, depending on how some are tallied, a number of which are found in other in other clauses, and in Amendments.

List of Enumerated Powers

NOTE: Some words in the text of the U.S. Constitution are spelled in the old English style. They have been left uncorrected here.

History of the Elastic Clause

The history of the Elastic Clause is a contentious one at best. According to the Articles of Confederation, the document that preceded the Constitution, each state is allowed to maintain its independence and the powers afforded to it, and is protected from any potential abuse of Congressional power. To this end, the Continental Congress was not given any additional powers other than those that were “expressly delegated” by the Confederation. So, it stands to reason that the introduction of the Necessary and Proper Clause would be met with a healthy amount of backlash, considering that it alone gives Congress powers that are not defined anywhere else in the Constitution.

The Elastic Clause became the one thing that would be argued over in discussions about whether or not the Constitution should be ratified. Anti-Federalists were concerned that the Elastic Clause would provide Congress with unbridled power, while Federalists believed that it would only serve to allow Congress to exercise the powers already granted to it by the Constitution.

Even after the Constitution was ratified, parties argued over how the Elastic Clause should be interpreted for several decades. For the first time in the history of the Elastic Clause, the authority was put into practice when, in 1791, Alexander Hamilton invoked the clause to defend the creation of the First Bank of the United States.

James Madison, concerned that the rich folks of the North would use the bank against the South, arguing that Congress did not have the Constitutional authority to charter a bank. Hamilton defended Congress, saying that the bank was a reasonable way to support taxation and borrowing, and that the clause applied to any and all activities that were related, within reason, to constitutional powers, and were not limited to those activities that were crucial to carrying out said powers.

This would not be the last time in the history of the Elastic Clause that Congress would be involved in a disagreement involving the chartering of a bank, as is discussed below in the landmark case of McCullock v. Maryland.

Elastic Clause Examples in U.S. History

The Elastic Clause has been nothing short of controversial since its inception, particularly during its infancy. While strict constructionists believe the clause establishes that Congress can only make a law if their inability to do so would render them useless in exercising one of its enumerated powers, loose constructionists believe that the Clause expands Congress’ authority to any and all areas that are even remotely associated with the enumerated powers.

Essentially, loose constructionists believe that anything is fair game when Congress is trying to exercise an enumerated power, while strict constructionists, as their name would suggest, believe that tighter restrictions should be placed on how far Congress can extend its reach. That being said, there are several examples of the Elastic Clause in U.S. history that show just how often the Clause has come under fire in the U.S. Court system.

McCulloch v. Maryland

One such example saw Congress locking horns with the state of Maryland in 1819, when Congress chartered the Second Bank of the United States in 1816. Two years later, the state of Maryland passed legislation that would ultimately tax the bank, but James W. McCulloch, a cashier working at the bank’s Baltimore branch, refused to pay the tax.

When the issue of whether the federally-chartered bank could be taxed by the state, the U.S. Supreme Court voted unanimously that Congress had the power to establish the bank, and that Maryland did not have the power to tax it. In this example of Elastic Clause interpretation, Chief Justice Marshall specifically noted in the decision that Congress can enjoy “unenumerated powers” that are not expressly defined by the Constitution.

Justice Marshall also held that while states do have the power to tax, the Supremacy Clause of the Constitution reigns supreme, and that states do not have the authority to tax the federal government. This is one of many examples of the Elastic Clause working in Congress’ favor.

United States v. Comstock

A more recent example involves the Adam Walsh Protection and Safety Act, and whether or not Congress had the constitutional authority to sanction it. The Supreme Court held that yes, Congress was granted the proper authority by the Elastic Clause to enact the Act.

The details of the case were thus: Graydon Earl Comstock was six days away from completing a 37-month sentence on charges related to child pornography. On that day, U.S. Attorney General, Alberto R. Gonzalez, certified Comstock as “sexually dangerous.” The lower courts ruled that Gonzalez had overstepped his bounds, and that the law he was applying to Comstock’s case was unconstitutional, as it exceeded Congress’ authority. The U.S. argued that the Elastic Clause did in fact provide Congress with the power it would need in order to enact this important protective legislation.

Related Legal Terms and Issues

• Federalist – A supporter of federal government, and of the Constitution.
• Articles of Confederation – The original constitution of the United States, ratified in 1781.
• Loose Constructionist – An individual who favors a liberal interpretation of the U.S. Constitution, to give broader powers to the federal government.
• Ratification – An official confirmation or sanctioning of something.
• Strict Constructionist – An individual who favors a narrow interpretation of the U.S. Constitution, keeping a tight rein on the powers given to the federal government.