ArtI.S8.C18.1.2 Definition of Punishment and Crimes

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.

Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded. 1 Illustrative of the offenses which have been punished under this power are the alteration of registered bonds, 2 the bringing of counterfeit bonds into the country, 3 conspiracy to injure prisoners in custody of a United States marshal, 4 impersonation of a federal officer with intent to defraud, 5 conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States, 6 the receipt by government officials of contributions from government employees for political purposes, 7 and advocating the overthrow of the government by force. 8 Part I of Title 18 of the United States Code comprises more than 500 sections defining penal offenses against the United States. 9

One of the most expansive interpretations of the Necessary and Proper Clause arose in the context of the administration of the federal penal system. In United States v. Comstock, 10 the Court evaluated a federal statute which allowed for the civil commitment of a federal prisoner past the term of his imprisonment if that prisoner would have serious difficulty in refraining from sexually violent conduct or child molestation. 11 The statute contained no requirement that the threatened future conduct would fall under federal jurisdiction, raising the question of what constitutional basis could be cited for its enforcement. The majority opinion in Comstock upheld the statute after considering five factors: (1) the historic breadth of the Necessary and Proper Clause; (2) the history of federal involvement in this area; (3) the reason for the statute’s enactment; (4) the statute’s accommodation of state interests; and (5) whether the scope of statute was too attenuated from Article I powers. 12

In evaluating these factors, the Court noted that previous federal involvement in the area included not only the civil commitment of defendants who were incompetent to stand trial or who became severely mentally ill during the course of their imprisonment, but, starting in 1949, the continued confinement of those adjudged incompetent or insane past the end of their prison term. In upholding the sex offender statute, the Court found that protection of the public and the probability that such prisoners would not be committed by the state represented a rational basis for the passage of such legislation. 13 The Court further found that state interests were protected by the legislation, as the statute provided for transfer of the committed individuals to state authorities willing to accept them. Finally, the Court found that the statute was not too attenuated from the Article I powers underlying the criminal laws which had been the basis for incarceration, as it related to the responsible administration of the United States prison system.


  1.  United States v. Fox, 95 U.S. 670, 672 (1878); United States v. Hall, 98 U.S. 343, 357 (1879); United States v. Worrall, 2 U.S. (2 Dall.) 384, 394 (1798); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). That this power has been freely exercised is attested by the pages of the United States Code devoted to Title 18, entitled Criminal Code and Criminal Procedure. In addition, numerous regulatory measures in other titles prescribe criminal penalties.
  2.  Ex parte Carll, 106 U.S. 521 (1883).
  3.  United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850).
  4.  Logan v. United States, 144 U.S. 263 (1892).
  5.  United States v. Barnow, 239 U.S. 74 (1915).
  6.  Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Waddell, 112 U.S. 76 (1884); In re Quarles and Butler, 158 U.S. 532, 537 (1895); Motes v. United States, 178 U.S. 458 (1900); United States v. Mosley, 238 U.S. 383 (1915). See also Rakes v. United States, 212 U.S. 55 (1909).
  7.  Ex parte Curtis, 106 U.S. 371 (1882).
  8.  18 U.S.C. § 2385.
  9.  See National Commission on Reform of Federal Criminal Laws, Final Report (Washington: 1970); National Commission on Reform of Federal Criminal Laws, Working Papers (Washington: 1970), 2 vols.
  10.  560 U.S. ___, No. 08–1224, slip op. (May 17, 2010). Breyer wrote the opinion of the Court, joined by Justices Roberts, Stevens, Ginsburg and Sotomayor. Justices Kennedy and Alito concurred in the judgement, while Justices Thomas and Scalia dissented.
  11.  In United States v. Kebodeaux, 570 U.S. 387 (2013), the Court concluded that a sex offender, convicted by the Air Force in a special court-martial, had, upon his release, been subject to state sex offender registration laws, violation of which was prohibited under the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. No. 103-322, 108 Stat. 2038–2042 (1994). Kebodeaux was later convicted of failing to register under the very similar provisions of the Sex Offender Registration and Notification Act (SORNA), Pub. L. No. 109-248, Title I, 120 Stat. 587, 590, (2006) (codified at 42 U.S.C. §§ 16901 et seq.), which had superseded the Jacob Wetterling Act. The Court held Congress was well within its authority under the Necessary and Proper Clause to have modified the Jacob Wetterling Act's registration requirements, and Kebodeaux was properly subject to SORNA requirements, even if they were enacted after his release. Kebodeaux, 570 U.S. 398–99.
  12.  560 U.S. ___, No. 08–1224, slip op. at 22.
  13.  Justice Kennedy, in concurrence, expressed concern that whether a statute is "rationally related" to the implementation of a power, see Williamson v. Lee Optical Co., 348 U.S. 483, 487-88 (1955) (Due Process Clause), is too deferential a standard to be used as regards the Necessary and Proper Clause. Justice Kennedy would use a more rigorous "rational basis" standard, found in Commerce Clause cases, where there must be shown a demonstrated link in fact, based on empirical demonstration. See Comstock, 560 U.S. ___, No. 08–1224, slip op. at 3 (Kennedy, J., concurring).