ArtI.S8.C18.3.2 The Necessary and Proper Clause Doctrine: Post-McCulloch Nineteenth Century Doctrinal Development

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.

Following McCulloch, the Necessary and Proper Clause received relatively little attention on its own through the nineteenth and twentieth centuries,1 although it served as an important component in many Commerce Clause cases.2 For example, in its 1824 opinion in Gibbons v. Ogden,3 the Supreme Court addressed the scope of Congress's power to regulate interstate commerce4 as supplemented by the Necessary and Proper Clause. Chief Justice Marshall concluded that the Commerce Clause empowers Congress to prescribe the rule by which commerce is to be governed, including every species of commercial intercourse among the states.5 Gibbons relied on the Necessary and Proper Clause as supporting a broad construction of commerce power,6 while at same time noting that the power did not reach purely intrastate commerce that does not extend to or affect other States, because such power would be inconvenient, and is certainly unnecessary.7

In a series of late nineteenth century opinions known as the Legal Tender Cases,8 the Supreme Court relied on McCulloch's reading of the Necessary and Proper Clause to establish Congress's power to issue paper money and make it legal tender for all debts, public and private.9 Although the Constitution expressly grants Congress the power to coin Money,10 this had been previously understood as limited to actual coinage (i.e., metal tokens).11 Nonetheless, the Legal Tender Cases upheld the issuance of paper money and its status as legal tender as necessary and proper to Congress's powers to tax, borrow money, coin money, and regulate interstate and foreign commerce.12 These powers, taken together with the Necessary and Proper Clause, authorized Congress to establish a national currency, either in coin or in paper, and to make that currency lawful money for all purposes.13

Footnotes

  1.  Jump to essay-1See Alison L. LaCroix, The Shadow Powers of Article I, 123 Yale L.J. 2044, 2060 (2014) (Before 2005, one would have been hard pressed to identify a body of doctrine on the necessary and proper power. . . . [T]he necessary and proper power has tended to ride along as a quieter, sometimes overlooked presence in the case law—the perpetual bridesmaid to the commerce power's bride.); Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 814 (1996) (Analysis of the Necessary and Proper Clause has historically begun and ended with McCulloch[.]).
  2.  Jump to essay-2See, e.g., United States v. Wrightwood Dairy Co., 315 U.S. 110, 119–21 (1942); United States v. Darby, 312 U.S. 100, 118 (1941); Houston, E. & W. Tex. Ry. Co. v. United States, 234 U.S. 342, 353 (1914).
  3.  Jump to essay-322 U.S. (9 Wheat.) 1 (1824).
  4.  Jump to essay-4U.S Const. art. I, § 8, cl. 3; see supra ArtI.S8.C3.1.1 Foreign Commerce Power through ArtI.S8.C3.1.4.2.1 State Taxation and the Dormant Commerce Clause.
  5.  Jump to essay-522 U.S. (9 Wheat.) at 196.
  6.  Jump to essay-6Id. at 187.
  7.  Jump to essay-7Id. at 193–94.
  8.  Jump to essay-8Juilliard v. Greenman, 110 U.S. 421 (1884); Knox v. Lee, 79 U.S. (12 Wall.) 457 (1870). These cases overturned Hepburn v. Griswold, which held that a law making United States notes legal tender for the payment of debts exceeded the powers of Congress. See 75 U.S. (8 Wall.) 603, 616–22 (1869). For further discussion of these cases, see supra ArtI.S8.C5.1 Coinage Power.
  9.  Jump to essay-9See Juilliard, 110 U.S. at 449–50.
  10.  Jump to essay-10U.S Const. art. I, § 8, cl. 5.
  11.  Jump to essay-11Hepburn, 75 U.S. (8 Wall.) at 616 ([The power to make paper notes] is certainly not the same power as the power to coin money.); Juilliard, 110 U.S. at 462 (Field, J., dissenting) (The meaning of the terms 'to coin money' is not at all doubtful. It is to mould metallic substances into forms convenient for circulation and to stamp them with the impress of the government authority indicating their value with reference to the unit of value established by law. Coins are pieces of metal of definite weight and value, stamped such by the authority of the government.).
  12.  Jump to essay-12Juilliard, 110 U.S. at 439–40, 448.
  13.  Jump to essay-13Id. at 448. As a corollary to its power over the currency, the Supreme Court later upheld Congress's power to abrogate clauses in private contracts that required payment in gold. See Norman v. Baltimore & Ohio R.R., 294 U.S. 240, 316 (1935).