Necessary and Proper Clause

The Necessary and Proper Clause, also known as the elastic clause, is a clause in Article I, Section 8 of the United States Constitution that is as follows:The Congress shall have 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.No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included.We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional. The Necessary and Proper Clause, also known as the elastic clause, is a clause in Article I, Section 8 of the United States Constitution that is as follows: According to the Articles of Confederation, 'each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated' (emphasis added). Thus, the Continental Congress had no powers incidental to those which were 'expressly delegated' by the Articles of Confederation. By contrast, the Necessary and Proper Clause expressly confers incidental powers upon Congress, while no other clauses in the Constitution do so by themselves. The draft Necessary and Proper Clause provoked controversy during discussions of the proposed constitution, and its inclusion became a focal point of criticism for those opposed to the Constitution's ratification. While Anti-Federalists expressed concern that the clause would grant the federal government boundless power, Federalists argued that the clause would only permit execution of power already granted by the Constitution. Alexander Hamilton spoke vigorously for this second interpretation in Federalist No. 33. At this time James Madison concurred with Hamilton, arguing in Federalist No. 44 that without this clause, the constitution would be a 'dead letter'. At the Virginia Ratifying Convention, Patrick Henry took the opposing view, saying that the clause would lead to limitless federal power that would inevitably menace individual liberty. For several decades after the Constitution was ratified, the interpretation of the Necessary and Proper Clause continued to be a powerful bone of contention between the Democratic-Republican Party and the Federalist Party, and several other political parties in the United States. The first practical example of this contention came in 1791, when Hamilton used the clause to defend the constitutionality of the creation of the First Bank of the United States, the first federal bank in the new nation's history. Concerned that monied Northern aristocrats would take advantage of the bank to exploit the South, Madison argued that Congress lacked the constitutional authority to charter a bank. Hamilton countered that the bank was a reasonable means of carrying out powers related to taxation and the borrowing of funds, claiming the clause applied to activities reasonably related to constitutional powers, not just those that were absolutely necessary to carry out said powers. To embarrass Madison, Hamilton's contrary claims from The Federalist Papers were read aloud in Congress: Eventually, Southern opposition to the bank and to Hamilton's plan to have the federal government assume the war debts of the states was mollified by the transfer of the nation's capital from its temporary seat in Philadelphia to a more southerly permanent seat on the Potomac, and the bill, along with the establishment of a national mint, was passed by Congress and signed by President Washington. This clause, as justification for the creation of a national bank, was put to the test in 1819 in the case of McCulloch v. Maryland, wherein the state of Maryland had attempted to impede the operations of the Second Bank of the United States by imposing a tax on out-of-state banks, of which the Second Bank of the United States was the only one. The court ruled against Maryland, and Chief Justice John Marshall (chief justice of the Marshall Court era), Hamilton's longtime Federalist ally, wrote the opinion, which stated that while the Constitution did not explicitly give permission to create a federal bank, it conferred upon Congress an implied power to do so under the Necessary and Proper Clause so that Congress could realize or fulfill its express taxing and spending powers. The case reaffirmed Hamilton's view that legislation reasonably related to express powers was constitutional. Marshall wrote: The court in McCulloch v. Maryland held that federal laws could be necessary without being 'absolutely necessary', and noted that 'The clause is placed among the powers of Congress, not among the limitations on those powers.' At the same time, the court retained the power of judicial review established in Marbury v. Madison, declaring that it had the power to strike down laws that departed from those powers: 'Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.' As Chief Justice Marshall put it, the Necessary and Proper Clause 'purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.' Without this clause in the Constitution, there would have been a dispute about whether the express powers imply incidental powers, whereas this clause resolved that dispute by making the incidental powers to be expressed instead of implied. In a related case following the Civil War, the clause was employed (in combination with other enumerated powers) to give the federal government virtually complete control over currency.