ArtI.S8.C18.3.3 The Necessary and Proper Clause Doctrine: Modern Doctrine (Twentieth Century to Present)

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.

Building on the foundation established by McCulloch, modern Necessary and Proper Clause doctrine holds that the Clause permits any federal legislation that is convenient or useful to the exercise of federal power—that is, any means that is rationally related to the implementation of a constitutionally enumerated power.1 The significance of this broad understanding of McCulloch on the powers of the federal government is difficult to overstate.2 Much federal law rests on the foundation established by McCulloch, and practically every power of the federal government has been expanded in some degree by the Necessary and Proper Clause.3 Under the authority granted it by the Clause, Congress has adopted measures required to comply with treaty obligations,4 organized the federal judicial system,5 regulated intrastate matters that substantially affect interstate commerce,6 seized property pursuant to its taxing powers,7 and exercised the power of eminent domain to acquire private property for public use.8

Perhaps most notably, nearly all federal criminal law that applies outside of federal enclaves9 relies on the Necessary and Proper Clause.10 The Constitution expressly empowers Congress to punish only four crimes: counterfeiting, piracies, offenses against the law of nations, and treason.11 The remainder of the federal criminal code—prohibitions on, for example, tax evasion, racketeering, mail fraud, and drug possession12—rests on a determination that criminalization is necessary to effectuate congressional power to regulate interstate commerce, collect taxes, establish post offices, spend for the general welfare, or some other enumerated federal power.13 For example, as necessary and proper to Congress's authority under the Spending Clause, Congress may criminalize bribery of state and local officials receiving federal funds.14 Or, as necessary and proper to its power to regulate interstate commerce, Congress may prohibit intrastate cultivation and use of controlled substances such as illegal drugs.15

In United States v. Comstock, the Roberts Court addressed whether the Necessary and Proper Clause could support a federal law that provided for indefinite civil commitment of certain persons in federal custody who were shown to be sexually dangerous, authorizing detention of such prisoners even after they had served their sentences.16 The difficulty with the law, as a matter of congressional power, was that sexual dangerousness was defined broadly, without an explicit tie to any enumerated federal power,17 such as an impact on commerce. Moreover, the Court's 2000 decision in United States v. Morrison foreclosed the argument that Congress could regulate general sexual violence pursuant to the Commerce Clause.18

The Court in Comstock upheld the civil commitment provision under the Necessary and Proper Clause. Writing for a five-Justice majority, Justice Breyer held that whatever enumerated power justified the prisoner's crime of conviction19 permitted Congress to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others, including through post-sentence civil commitment.20 This conclusion was justified by five factors:

(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute's enactment in light of the Government's custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute's accommodation of state interests, and (5) the statute's narrow scope.21

In 2013, the Supreme Court reaffirmed Comstock's reasoning in United States v. Kebodeaux.22 Like Comstock, Kebodeaux concerned a federal regulation of sex offenders: the registration requirements of the 2006 Sex Offender Registration and Notification Act (SORNA).23 Anthony Kebodeaux, a member of the U.S. Air Force, was convicted by a court martial of a sex crime in 1999; he served a three-month sentence and received a bad conduct discharge.24 In 2007, Kebodeaux was convicted of violating SORNA when he moved from El Paso to San Antonio but failed to update his registration.25

Although Congress did not enact SONRA until after Kebodeaux's court martial and discharge, the Supreme Court upheld its application to Kebodeaux as necessary and proper to Congress's power to make Rules for the . . . Regulation of the land and naval Forces.26 Key to that conclusion was the Court's finding that Kebodeaux's release from federal custody was not unconditional because, as part of his original punishment by the court martial he was subject to an earlier federal statute, the Wetterling Act, which imposed very similar registration requirements to those of SORNA.27 The Court thus framed the case as presenting a narrow question of whether Congress could later modify the Wetterling Act's registration requirements through SORNA.28 Applying the five Comstock factors, the Court concluded that the breadth of the Necessary and Proper Clause and the reasonableness of Congress's registration requirements justified SORNA's application to Kebodeaux.29

Although Comstock and Kebodeaux embrace a broad, relatively deferential understanding of the Necessary and Proper Clause, the Supreme Court has at times taken a narrower view, especially in cases involving independent federalism concerns.30 In the Commerce Clause context, for example, the Rehnquist Court found the Necessary and Proper Clause insufficient to support laws prohibiting possession of guns near schools31 and prohibiting gender-motivated violence,32 despite arguments that these activities have an aggregate impact on interstate commerce. These cases are discussed in greater detail elsewhere in the Constitution Annotated.

Similarly, just two years after Comstock, five Justices separately concluded that the individual mandate provision of the Affordable Care Act (ACA), which required individuals to purchase insurance or pay a tax penalty, exceeded Congress's power under the Commerce and Necessary and Proper Clauses.33 In National Federation of Independent Business v. Sebelius (NFIB), Chief Justice Roberts's opinion reasoned that the individual mandate was not an essential component of the ACA's health insurance reforms because it operated to vest[] Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power by compelling individuals to engage in commerce.34 Therefore, unlike the law in Comstock, the authority Congress attempted to exercise in NFIB was neither narrow in scope nor incidental to the exercise of Commerce Clause power.35 However, a majority of the Court ultimately held that the individual mandate was authorized under Congress's power to lay and collect taxes.36


  1.  Jump to essay-1United States v. Comstock, 560 U.S. 126, 134 (2010).
  2.  Jump to essay-2See, e.g., David S. Schwartz, Misreading McCulloch v. Maryland, 18 U. Pa. J. Const. L. 1, 3 (2015) (describing universal view of McCulloch as a decision of the highest importance in American constitutional law); Daniel A. Farber, The Story of McCulloch: Banking on National Power, 20 Const. Comment. 679 (2004) (Many scholars consider [McCulloch] the single most important opinion in the Court's history.); Jack M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963, 987 (1998) (At least within the field of constitutional law, almost everyone seems to agree that McCulloch is canonical.).
  3.  Jump to essay-3See, e.g., Kurt T. Lash, The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and Expressly Delegated Power, 83 Notre Dame L. Rev. 1889, 1942 (2008) ([In McCulloch, Chief Justice Marshall] articulated a vision of federal power not only expansive for its day, but expansive enough to become the foundational theory of the modern administrative state.); Felix Frankfurter, John Marshall and the Judicial Function, 69 Harv. L. Rev. 217, 219 (1955) (One can, I believe, say with assurance that a failure to conceive the Constitution as Marshall conceived it in [McCulloch], to draw from it the national powers which have since been exercised and to exact deference to such powers from the states, would have been reflected by a very different United States than history knows.); see also supra note 2 (sources discussing the influence and importance of McCulloch).

    Moreover, later amendments to the Constitution, including the Civil War Amendments, drew on McCulloch's language to empower Congress to enforce their provisions by by appropriate legislation. U.S. Const. amends. XIII, § 2; XIV, § 5; XV, § 2; XIX, § 2; XXIII, § 2; XXIV, § 2; XXVI, § 2. For the connection between McCulloch and the term appropriate legislation, see, for example, Cong. Globe, 39th Cong., 1st Sess. 1118 (1866) (statement of Rep. Wilson) (equating appropriate as used in section two of the Thirteenth Amendment with necessary and proper and citing McCulloch); Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) ([T]he McCulloch v. Maryland standard is the measure of what constitutes 'appropriate legislation' under § 5 of the Fourteenth Amendment.); The Civil Rights Cases, 109 U.S. 3, 51 (1883) (Harlan, J., dissenting) (The word appropriate was undoubtedly used with reference to its meaning, as established by repeated decisions of th[e] [C]ourt. (citing McCulloch)); Ex parte Virginia, 100 U.S. 339, 346 (1879) (defining appropriate legislation by paraphrasing the McCulloch standard).

  4.  Jump to essay-4Missouri v. Holland, 252 U.S. 416, 432 (1920) (holding that congressional statutes to implement a treaty are valid under the Necessary and Proper Clause so long as the treaty is valid); Neely v. Henkel, 180 U.S. 109, 121 (1901) (observing that the Necessary and Proper Clause empowers Congress to enact such legislation as is appropriate to give efficacy to a treaty with a foreign power).
  5.  Jump to essay-5Jinks v. Richland Cty., 538 U.S. 456, 461–64 (2003) (holding that federal courts may exercise supplemental jurisdiction, including tolling of state statutes of limitation, pursuant to Article III and the Necessary and Proper Clause); Willy v. Coastal Corp., 503 U.S. 131, 136–37 (1992) (holding that federal courts may impose sanctions on litigants pursuant to Article III and the Necessary and Proper Clause, even if it is later determined that the court lacked subject matter jurisdiction); Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32 (1988) (holding that the federal transfer statute is comfortably with Congress'[s] powers under Article III as augmented by the Necessary and Proper Clause); Burlington N. R.R. v. Woods, 480 U.S. 1, 5 n.3 (1987) (Article III of the Constitution, augmented by the Necessary and Proper Clause of Article I, § 8, cl. 18, empowers Congress to establish a system of federal district and appellate courts and, impliedly, to establish procedural Rules governing litigation in these courts.); see also Artis v. District of Columbia, No. 16-460, slip op. at 16–18 (2018) (reaffirming Jinks).
  6.  Jump to essay-6See, e.g., Gonzales v. Raich, 545 U.S. 1, 17–22 (2005) (holding that Congress had authority to criminalize intrastate possession of marijuana under the Commerce and Necessary and Proper Clauses); see generally supra ArtI.S8.C3.1.1 Foreign Commerce Power through ArtI.S8.C3. State Taxation and the Dormant Commerce Clause.
  7.  Jump to essay-7Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 281 (1856) (The power to collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the constitution.).
  8.  Jump to essay-8Kohl v. United States, 91 U.S. 367, 372–73 (1876) ([T]he right of eminent domain exists in the Federal government . . . so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.).
  9.  Jump to essay-9See supra ArtI.S8.C17.1.1 Power over the Seat of Government: Historical Background, ArtI.S8.C17.1.2 Power over the Seat of Government: Doctrine and Practice, and ArtI.S8.C17.2 Power Over Places Purchased.
  10.  Jump to essay-10See United States v. Comstock, 560 U.S. 126, 135–36 (2010).
  11.  Jump to essay-11See U.S. Const. art. I, § 8, cls. 6, 10; id. art. III, § 3, cl. 2.
  12.  Jump to essay-12See, e.g., 18 U.S.C. §§ 1341–51(mail fraud and wire fraud); id. §§ 1951–68 (racketeering); 21 U.S.C. § 844 (drug possession); 27 U.S.C. § 7201 (tax evasion).
  13.  Jump to essay-13For example, the Supreme Court has upheld federal laws criminalizing the alteration of registered bonds, Ex parte Carll, 106 U.S. 521 (1883), the bringing of counterfeit bonds into the country, United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850), conspiracy to injure prisoners in custody of a United States Marshal, Logan v. United States, 144 U.S. 263, 282–84 (1892), impersonation of a federal officer with intent to defraud, United States v. Barnow, 239 U.S. 74, 77–80 (1915), 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, Ex parte Yarbrough, 110 U.S. 651, 657–59 (1884), and the receipt by government officials of contributions from government employees for political purposes, Ex parte Curtis, 106 U.S. 371, 373–75 (1882).
  14.  Jump to essay-14Sabri v. United States, 541 U.S. 600, 606 (2004).
  15.  Jump to essay-15Gonzales v. Raich, 545 U.S. 1, 5, 22 (2005).
  16.  Jump to essay-16560 U.S. 126, 130–31 (2010).
  17.  Jump to essay-17See 18 U.S.C. § 4247(a)(6) (defining a sexually dangerous person as one who suffers from a serious mental illness . . . as a result of which he would have serious difficulty in refrain from sexually violent conduct or child molestation if released).
  18.  Jump to essay-18529 U.S. 598, 617 (2000) (holding that Congress may not regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce); see supra ArtI.S8.C3.1.2 Commerce Among the Several States (discussing Morrison).
  19.  Jump to essay-19Notably, the civil commitment provisions applied to any person in federal custody, regardless of whether his conviction was for a sex-related crime or not. See 18 U.S.C. §§ 4247(a)(5), 4248(a). In practice, however, many of the individuals committed under the statute were in federal custody for a sex crime that fell within federal jurisdiction, such as possession of child pornography that has been shipped or transported in or affecting interstate or foreign commerce . . . by any means including by computer. See id. § 2252(a)(2); Comstock, 560 U.S. at 131 (Three of the five [petitioners] had previously pleaded guilty in federal court to possession of child pornography).
  20.  Jump to essay-20Comstock, 560 U.S. at 149.
  21.  Jump to essay-21Id.
  22.  Jump to essay-22570 U.S. 387 (2013).
  23.  Jump to essay-23See 34 U.S.C. §§ 20911-932; 18 U.S.C. § 2250(a).
  24.  Jump to essay-24Kebodeaux, 570 U.S. at 389–90.
  25.  Jump to essay-25Id. at 390.
  26.  Jump to essay-26U.S. Const. art. I, § 8, cl. 14; Kebodeaux, 570 U.S. at 399.
  27.  Jump to essay-27Kebodeaux, 570 U.S. at 391.
  28.  Jump to essay-28Id. at 393–94.
  29.  Jump to essay-29See id. at 395–99.
  30.  Jump to essay-30See, e.g., Alden v. Maine, 527 U.S. 706, 732 (1999) (holding that the Congress could not subject states to suit for federal claims in state courts because the specific Article I powers delegated to Congress necessarily [do not] include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers); Printz v. United States, 521 U.S. 898, 923-24 (1997) (holding that Congress cannot compel state officials to enforce federal law and characterizing the Necessary and Proper Clause as the last, best hope of those who defend ultra vires congressional action).
  31.  Jump to essay-31United States v. Lopez, 514 U.S. 549, 566–68 (1995).
  32.  Jump to essay-32United States v. Morrison, 529 U.S. 598, 617 (2000).
  33.  Jump to essay-33See Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 558–61 (2012) (opinion of Roberts, C.J.). Although there were five votes for this holding, no single rationale was adopted by the Court. Compare id. at 558-61 (opinion of Roberts, C.J.) with id. at 649-55 (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).
  34.  Jump to essay-34Id. at 560 (opinion of Roberts, C.J.).
  35.  Jump to essay-35Id.
  36.  Jump to essay-36Id. at 574.