ArtI.S8.C18.1 The Necessary and Proper Clause: Overview

Article I, Section 8, Clause 18:

[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.

The Necessary and Proper Clause1 concludes Article I's list of Congress's enumerated powers with a general statement that Congress's powers include not only those expressly listed, but also the authority to use all means necessary and proper for executing those express powers. Under the Necessary and Proper Clause, congressional power encompasses all implied and incidental powers that are conducive to the beneficial exercise of an enumerated power.2 The Clause does not require that legislation be absolutely necessary to the exercise of federal power.3 Rather, so long as Congress's end is within the scope of federal power under the Constitution, the Necessary and Proper Clause authorizes Congress to employ any means that are appropriate and plainly adapted to the permitted end.4

The Necessary and Proper Clause was included in the Constitution in response to the shortcomings of the Articles of Confederation, which had limited federal power to only those powers expressly delegated to the United States.5 While the Framers chose to follow the Articles in enumerating a list of specific federal powers—as opposed to some general statement of federal power6—they included the Necessary and Proper Clause to make clear that Congress's power encompassed the implied power to use all appropriate means required to execute those express powers.7 The Necessary and Proper Clause was not a primary focus of debate at the Constitutional Convention itself, but its meaning quickly became a major issue in the debates over the ratification of the Constitution,8 and in the early Republic.9

The Supreme Court has interpreted the Necessary and Proper Clause as an extension of the other powers vested in the federal government, most notably Congress's enumerated Article I powers.10 Thus, whenever the Supreme Court addresses the outer limits of Congress's enumerated powers, it necessarily invokes the Necessary and Proper Clause as well, either explicitly or implicitly.11 However, the Necessary and Proper Clause is not, in itself, an independent grant of congressional power.12 Although the Necessary and Proper Clause is therefore implicated in many cases examining the extent of Congress's power under, for example, the Commerce Clause, those decisions are primarily addressed elsewhere in the Constitution Annotated, under the particular enumerated federal power at issue.13

In a few cases, however, the Supreme Court has analyzed Congress's power under the Necessary and Proper Clause separately from any specific enumerated power. Typically, these cases involve either multiple enumerated powers,14 or congressional actions that are many steps removed from the exercise of the underlying enumerated federal power.15 Because the extent of the Necessary and Proper Clause defines the outer reaches of Congress's Article I legislative powers, these cases, in effect, delineate the boundary between the authority of the federal government and those areas reserved to the states.16

This section first reviews the history of the Necessary and Proper Clause's inclusion in the Constitution and its role in the ratification debates. Next, the section turns to the early judicial interpretation of the Clause, culminating in the Chief Justice Marshall's landmark 1819 opinion in McCulloch v. Maryland. After briefly reviewing the major nineteenth century Supreme Court decisions on the Necessary and Proper Clause following McCulloch, the section concludes with a review of the modern Supreme Court cases on the scope of Congress's power under the Clause.

Footnotes

  1.  Jump to essay-1Although Necessary and Proper Clause is the modern term for the constitutional provision, historically it was often called the Sweeping Clause. See, e.g., The Federalist No. 33, at 205 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ([T]he sweeping clause, as it has been affectedly called, authori[z]es the national legislature to pass all necessary and proper laws.); see generally John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045, 1059 & n.47 (2014) ([The Framers] referred to the last clause of Article I, Section 8 as the 'Sweeping Clause.'). The terms Elastic Clause, Basket Clause, and Coefficient Clause are also occasionally used to refer to this provision. See Devotion Garner & Cheryl Nyberg, Popular Names of Constitutional Provisions, Univ. of Wash. Sch. of Law, https://lib.law.uw.edu/ref/consticlauses.html#oth (listing these terms as popular name[s] for the provision).
  2.  Jump to essay-2McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 418 (1819).
  3.  Jump to essay-3See id. ([T]his limited construction of the word 'necessary' [as meaning indispensably necessary] must be abandoned).
  4.  Jump to essay-4United States v. Darby, 312 U.S. 100, 124 (1941).
  5.  Jump to essay-5Articles of Confederation of 1781, art. II (Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.).
  6.  Jump to essay-6See infra ArtI.S8.C18.2 The Necessary and Proper Clause: Historical Background notes 28 and accompanying text (discussing alternative formulations of federal power considered at the Constitutional Convention).
  7.  Jump to essay-7See The Federalist No. 44 (James Madison) (Clinton Rossiter ed., 1961).
  8.  Jump to essay-8See infra ArtI.S8.C18.2 The Necessary and Proper Clause: Historical Background notes 1724 and accompanying text (reviewing the role of the Clause in the ratification debates).
  9.  Jump to essay-9See infra ArtI.S8.C18.2 The Necessary and Proper Clause: Historical Background notes 2528 and accompanying text (reviewing the debate over the constitutionality of the First Bank of the United States).
  10.  Jump to essay-10See generally United States v. Comstock, 560 U.S. 126, 133–34 (2010).
  11.  Jump to essay-11See, e.g., Gonzales v. Raich, 545 U.S. 1, 5 (2005) (addressing whether the prohibition of intrastate use and cultivation of marijuana was necessary and proper to Congress's power to regulate interstate commerce); United States v. Kahriger, 345 U.S. 22, 29–32 (1953) (addressing whether registration requirement for tax on illegal gambling activities was a necessary and proper exercise of Congress's power to tax), overruled in part by Marchetti v. United States, 390 U.S. 39 (1968); United States v. Darby, 312 U.S. 100, 121–25 (1941) (addressing whether wage and hour regulations, as applied to intrastate activities, were necessary and proper to Congress's power to regulate interstate commerce).
  12.  Jump to essay-12See Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247 (1960) (The [Necessary and Proper Clause] is not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out the specifically granted 'foregoing' powers of [Article I, section 8] 'and all other Powers vested by this Constitution.').
  13.  Jump to essay-13See supra, e.g., ArtI.S8.C1.1 Taxing Power; ArtI.S8.C1.2 Spending Power; and ArtI.S8.C3.1.2 Commerce Among the Several States.
  14.  Jump to essay-14See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (considering whether Congress's powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies implied the power to establish a national bank under the Necessary and Proper Clause); Juilliard v. Greenman, 110 U.S. 421, 439–40 (1884) (considering whether Congress's powers to borrow money, coin money, lay and collect taxes, and regulate interstate and foreign commerce implied the power to make paper notes legal tender for public and private debts under the Necessary and Proper Clause).
  15.  Jump to essay-15See, e.g., United States v. Comstock, 560 U.S. 126, 148 (2010) (considering whether the same enumerated power that justifies the creation of a federal criminal statute further justifies indefinite civil commitment of federal prisoners after the expiration of their criminal sentences).
  16.  Jump to essay-16See U.S. Const. amend. X (The powers not delegated to the United States by the Constitution . . . are reserved to the states respectively, or to the people.).