Of these the first is, the "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."
They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.
As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted.
Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.
It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER
to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper
for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it.
The interpretive struggle over the meaning of American federalism has shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause (21) and, to a lesser extent, the General Welfare Clause.
The resurgence of the Necessary and Proper and General Welfare Clauses in the doctrine is not a sign of intellectual impoverishment or a mere result of crafty litigation strategies; neither is it a retreat to the weedy curtilage of the federalism field.
As I will demonstrate, the novelty of shadow powers analysis lies in the sharp line the Court appears increasingly willing to draw between solid, if controversial, Article I powers such as the commerce power, and auxiliary Article I powers such as the necessary and proper power.
To ask what it means to have the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" (41) and 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" (42) is to ask existential questions about the scope of federal power--and, therefore, about the meaning of the Union.
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Understood literally, the clause prevents congress from exercising vital constitutional powers.
The necessary and proper clause apparently establishes a constitutional standard that legislation rarely meets.
means no more than needful, requisite, incidental, useful or condusive to,"(5) even if one rejects the Jeffersonian argument that "necessary means" are "those means without which the grant of power would be nugatory."(6) Unfortunately, no one, including the constitutional framers, knows the point of the phrase "necessary and proper."