Necessary and Proper Clause

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In framing the U.S. Constitution, the leaders of the time gave certain specific powers to Congress, reserving all other powers to the individual states. This was done in order to ensure the new government would not become an oppressive entity, such as the government they had left behind in England. These men knew, however, that they could not foresee the needs of the country as it grew and developed.

The final provision of Article 1, Section 8 of the U.S. Constitution gives Congress the power to enact laws that are “necessary and proper” in the execution of their enumerated powers. To explore this concept, consider the following necessary and proper clause definition.

Definition of Necessary and Proper Clause

Noun

  1. A clause in Section 8, article 1 of the Constitution that provides the federal government with the authority to make laws that are necessary and proper for carrying out enumerated powers.

Origin

U.S. Constitution, Article 1, Section 8

What is the Necessary and Proper Clause

The Necessary and Proper Clause, often referred to as the “Elastic Clause,” pertains to powers not expressly given to Congress in the United States Constitution, but which may be necessary and proper to accomplish their constitutional charges. Congressional powers are found in different places in the Constitution, but the Necessary and Proper Clause is contained in the last paragraph of Article 1, Section 8. This clause provides the federal government with flexibility when it comes to creating laws when the Constitution does not give Congress the specific authority to act, hence the moniker “Elastic Clause.”

The clause specifies that Congress has the authority:

“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 are Enumerated Powers

The U.S. Constitution specifically lays out the powers granted to Congress. While many people look to the powers specifically listed in Article 1, Section 8 of the Constitution, Congress is granted other powers in various sections of the document, subject to the limitations in the Bill of Rights. The term “enumerated” means to mention certain things one by one, or to specify certain things individually in a list. The powers specifically listed in Section 8 of Article 1 are referred to as “Enumerated Powers.”

The enumerated powers dictate how the branches of the federal government, including Congress can and should operate. There are some Congressional powers not specifically listed in the Constitution, but which are seen as obviously necessary to exercise the powers granted. These are referred to as “implied powers.”

As an example, some of the enumerated powers in the U.S. Constitution give Congress the power to:

  • Lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence [this spelling used in original document] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
  • Establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  • Provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
  • Establish Post Offices and post Roads; and
  • Create Tribunals inferior to the Supreme Court [tribunals refer to courts].

History of the Necessary and Proper Clause

Framers of the Constitution knew that not all of the powers Congress would need in an ever-changing world could be listed explicitly. To address this problem, the Necessary and Proper Clause was drafted. The Clause, however, immediately sparked a storm of dispute, as anti-federalists contended it would give the federal government unlimited powers. Federalists argued that the clause would only give the government the authority to accomplish those powers listed in the Constitution.

Alexander Hamilton and James Madison argued on behalf of the Clause, believing that without it, the Constitution would not be effective. The Clause was eventually placed in the Constitution, and the first practical example of its use came into play in 1791 when Alexander Hamilton stretched the Elastic Clause to defend the formation of the First Bank of the United States.

The bank was the first federal bank of the new nation, and James Madison argued that, while Congress does have the authority to print money, it does not have the authority to charter a bank. Hamilton, on the other hand, believed that the Necessary and Proper Clause related to constitutional powers, and therefore creating the bank was a reasonable means of carrying out its powers related to the economy.

McCulloch v Maryland

In 1816, Congress created an act actually titled “An Act to Incorporate the Subscribers to the Bank of the United States.” This addressed the issue of the taxes levied by the state of Maryland, where the Second Bank of the United States (successor to the First Bank of the United States), on all bank notes issued by banks not chartered by the state of Maryland. This meant that any bank, including the Second Bank of the U.S., not given specific governmental permission to operate in its location, would be taxed for bank notes, promissory notes, and other negotiable instruments.

When the First Bank of the United States was formed, with branches in three cities, it began doing normal banking activities, such as issuing bank notes, marking down promissory notes, taking in deposits, and performing other normal banking activities. At that time, some questioned the authority of the federal government to establish a bank.

When the branch was established in Baltimore, Maryland, a dispute arose on the topic, as James McCulloch, head of the Baltimore brand of the Second Bank, refused to pay the state tax. In the ensuing litigation, the state of Maryland argued that “the Constitution is silent on the subject of banks,” making such power a reserved power that may be solely exercised by the states.

Interestingly enough, both sides agreed that neither the President of the United States, Congress, nor the directors and company of the Bank had the authority to establish a bank in Pennsylvania without the state’s consent. The trial court ruled in favor of the state, though that decision was appealed by the federal government. When the appellate court upheld the trial court’s decision, the matter was taken before the U.S. Supreme Court.

Ruling of the Supreme Court

The Supreme Court ruled that Congress did indeed have the power to create a bank. In the Court’s written decision, Chief Justice John Marshall cited several reasons for the Court’s decision, finally bringing to mind the Necessary and Proper Clause, which gives Congress the power to act, or to create legislation for the purpose of accomplishing any of the powers assigned to the federal government by the Constitution. Such authority is referred to as inferred powers. This holds true as long as the act or legislation can reasonably seen as necessary and proper to accomplishing the government’s goal, and that the act or legislation is not specifically forbidden by the Constitution.

When the Court made this ruling, it nullified Maryland’s assumption that the word “necessary” in the Necessary and Proper clause of the Constitution gave Congress only the power to enact laws that are crucial to the performance of its enumerated powers. Justice Marshall pointed out, in the ruling, that many enumerated powers would be useless if Congress could only enact laws absolutely essential to the execution of an enumerated power. Finally, Justice Marshall made public note of the fact that the Necessary and Proper Clause is contained within the powers granted to Congress, not in the section listing its limitations.

Related Legal Terms and Issues

  • Authority – The right or power to make decisions, to give orders, or to control something or someone.
  • Bill of Rights – The first ten amendments to the U.S. Constitution
  • Congress – The legislative branch of the United States federal government, composed of the House of Representatives and the Senate.
  • Legislation – A law, or body of laws, enacted by a government.
  • Litigation – The process of taking legal action; the process of suing someone, or trying them for a criminal act.