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
- 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.
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 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
|1||Article I, Sect. 8||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;|
|2||To borrow Money on the credit of the United States;|
|3||To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;|
|4||To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;|
|5||To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;|
|6||To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;|
|7||To establish Post Offices and post Roads;|
|8||To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;|
|9||To constitute Tribunals inferior to the supreme Court;|
|10||To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;|
|11||To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;|
|12||To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;|
|13||To provide and maintain a Navy;|
|14||To make Rules for the Government and Regulation of the land and naval Forces;|
|15||To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;|
|16||To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;|
|17||To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And|
|18||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.|
|19||Article I, Sect. 10||No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.|
|20||Article I, Sect. 2||The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment…|
|21||Article I, Sect. 3||The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.|
|22||Article I, Sect. 4||The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.|
|23||Article II, Sect. 1||The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.|
|24||In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.|
|25||Article III, Sect. 1||The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.|
|26||Article III, Sect. 2||The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.|
|27||Article III, Sect. 3||The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.|
|28||Article IV, Sect. 1||Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.|
|29||Article IV, Sect. 3||New States may be admitted by the Congress into this Union;|
|30||Article IV, Sect. 3||The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.|
|31||Article V, Sect. 1||The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.|
|32||16th Amendment||The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.|
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.