Necessary and Proper Clause

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Necessary and Proper Clause

The specific powers and duties of the U.S. Congress are enumerated in several places in the Constitution. The most important listing of these powers is in Article I, Section 8, which identifies in 17 paragraphs the many important powers of Congress. The last paragraph grants to Congress the flexibility to create laws or otherwise to act where the Constitution does not give it the explicit authority to act. This clause is known as the Necessary and Proper Clause, although it is not a federal power, in itself.

The Necessary and Proper Clause allows Congress "To make all Laws which shall be necessary and proper for carrying into Execution the [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Article I, Section 8, Clause 18). It is also sometimes called the "elastic clause." It grants Congress the powers that are implied in the Constitution, but that are not explicitly stated. That is why the powers derived from the Necessary and Proper Clause are referred to as implied powers.

The correct way to interpret the Necessary and Proper Clause was the subject of a debate between Secretary of the Treasury Alexander Hamilton and Secretary of State Thomas Jefferson. Hamilton argued for an expansive interpretation of the clause. His view would have authorized Congress to exercise a broad range of implied powers. On the other hand, Jefferson was concerned about vesting too much power in any one branch of government. He argued that "necessary" was a restrictive adjective meaning essential. Jefferson's interpretation would have strengthened States' Rights. George Washington and James Madison favored Hamilton's more flexible interpretation, and subsequent events helped to foster the growth of a strong central government. Their debate over the Necessary and Proper Clause between Hamilton and Jefferson came to a head in a landmark U.S. Supreme Court case, mcculloch v. maryland, 17 U.S. 316 (1819).

McCulloch v. Maryland was the first case in which the U.S. Supreme Court applied the Necessary and Proper Clause. Some constitutional historians believe that the opinion in McCulloch v. Maryland represents an important act in the ultimate creation of the U.S. federal government. The case involved the question of whether Congress had the power to charter a bank. At first, this question might seem inconsequential, but underlying it are larger questions that go to the foundations of constitutional interpretation. To some extent, they are still debated.

The First Bank of the United States was established in 1791, but it had failed in 1811 due to a lack of support from Congress. Inflation in the years following the War of 1812 compelled President James Madison and Congress to establish a new national bank, which was chartered in 1816. The new bank established branches throughout the states. Many state-chartered banks resented the cautious policies of the Bank of the United States. Their directors sought assistance from their state legislatures to restrict the operations of the Bank of the United States. Accordingly, Maryland imposed a tax on the bank's operations, and when James McCulloch, a cashier of the Baltimore branch of the Bank of the United States, refused to pay the Maryland tax, the issue went to court.

The questions before the U.S. Supreme Court involved whether the state or national government held more power. Central to this issue was the Court's interpretation of the Necessary and Proper Clause. The Court held that the state of Maryland could not undermine an act of Congress. The states were subordinate to the federal government. This ruling established that Congress could use the Necessary and Proper Clause to create a bank even though the Constitution does not explicitly grant that power to Congress. Chief Justice John Marshall's opinion not only endorsed the constitutionality of the bank, but went on to uphold a broad interpretation of the federal government's powers under the Constitution. The case quickly became the legal cornerstone of subsequent expansions of federal power.

Further readings

Newmyer, R. Kent. 2001. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State Univ. Press.

Simon, James F. 2002. What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States. New York: Simon & Schuster.

Wilson, Bradford P., and Ken Masugi, eds. 1998. The Supreme Court and American Constitutionalism. Lanham, Md.: Rowman & Littlefield.

References in periodicals archive ?
See Transcript of Oral Argument, supra note 121, at 13 ("Justice Scalia: General Kagan, you are relying on the Necessary and Proper Clause, right?
Because these approaches allow for regulation of objects or activities that merely affect interstate commerce, both implicitly rely on the classic constitutional catch-all: the Necessary and Proper Clause.
insisted that the Necessary and Proper Clause was not an additional freestanding grant of power, but merely made explicit what was already implicit in the grant of each enumerated power.
With the adoption of the Necessary and Proper Clause, powers that formerly rested on a broad reading of the power to "determinje] on .
II treaty power coupled with the Necessary and Proper Clause.
Holland (14) had long ago established two propositions: first, that the United States has constitutional authority to enter into treaties relating to matters not falling within Congress's enumerated powers; (15) and second, that in the event such a treaty is non-self-executing and requires statutory implementation, Congress can--if it would not otherwise possess the authority to adopt such a statute--rely on the Necessary and Proper Clause.
The Roberts Court has recently begun reviving a long-latent structural constitutional principle--that some unenumerated powers are too important to be inferred through the Necessary and Proper Clause.
It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement treaties.
5) On the Commerce Clause and Necessary and Proper Clause issues, the direct legal effects are complex and likely to be disputed.
Whether the individual mandate is permissible under the Necessary and Proper Clause in Article 1 of the Constitution;
17) While the United States has defended the Act as an appropriate exercise of Congress's power under the Necessary and Proper Clause, those challenging the Act have sharply criticized such reasoning, arguing that rationalization of the Act amounts to a piling of inferences, and thus betrays the traditional test for constitutionality under the Necessary and Proper Clause.
The Administration contends that the Necessary and Proper Clause forms a basis for Federal legislation independent of Article I, permitting legislation on any subject Congress thinks necessary for the public good.