Necessary and Proper Clause

The powers of Congress are enumerated in several places in the Constitution.  The most important listing of congressional powers appears in Article I, Section 8 which identifies in seventeen paragraphs many important powers of Congress.  The last paragraph of Article I, Section 8 grants to Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers"--the "Necessary and Proper Clause."  The proper interpretation of the Necessary and Proper Clause was the subject of a heated debate between such important figures as Alexander Hamilton (who argued that the clause should be read broadly to authorize the exercise of many implied powers) and Thomas Jefferson (who argued that "necessary" really meant necessary).  Hamilton's more flexible interpretation makes possible a strong central government, whereas Jefferson's narrower interpretation strengthens states' rights.

The famous case of McCulloch vs Maryland considered whether Article I, Section 8 gave Congress the power to create a national bank and, if so, whether the state of Maryland could tax it.  For nine days, Daniel Webster and former Constitutional Convention delegate Luther Martin jargued the case before the justices of the Supreme Court.  Chief Justice John Marshall, writing for the Court, found the Necessary and Proper Clause gave Congress the flexibility to create the bank as an aid to carrying out its enumerated borrowing and taxing powers and that Maryland's taxation of the bank violated the Supremacy Clause.   

U. S. vs Gettysburg Elec. Ry. Co. (1896) considered whether Congress had the power to condemn a railroad's land in what was to be Gettysburg National Military Park.  Writing for the Court, Justice Peckham found that the power to condemn the railroad's land was implied by the powers of Congress to declare war and equip armies because creation of the park "tends to quicken and strenghten" the motives of the citizen to defend "the institutions of his country." 

Skipping forward more than a century to the modern era, we see the Court in U. S. v Comstock (2010) give an especially broad reading to the Necessary and Proper Clause.  In Comstock, the Court upheld a federal law that authorized the continuing detainment, under a civil commitment program, of potentially dangerous sexual offenders who had completed their prison terms.  The Court found the law "reasonably adapted" to a "legitimate" and constitutional end of government, and therefore to be constitutionally supported by the Necessary and Proper Clause.  Writing for the Court, Justice Breyer said the fact that the law was several steps removed from any of the enumerated powers of Article I was not fatal.  Justices Thomas and Scalia dissented, arguing that the law "executes no enumerated power," and was therefore unconstitutional.


Necessary and Proper Clause

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 the Constitution in the Government of the United States, or in any Department or Officer thereof.



The Necessary and Proper Clause, sometimes called the “coefficient” or “elastic” clause, is an enlargement, not a constriction, of the powers expressly granted to Congress. Chief Justice Marshall’s classic opinion in McCulloch v. Maryland1845 set the standard in words that reverberate to this day. “Let the end be legitimate,” he wrote, “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.”1846Moreover, the provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments.1847

Practically every power of the National Government has been expanded in some degree by the Necessary and Proper Clause. Under the authority granted it by that clause, Congress has adopted measures requisite to discharge the treaty obligations of the nation,1848 has organized the federal judicial system, and has enacted a large body of law defining and punishing crimes. Effective control of the national economy has been made possible by the authority to regulate the internal commerce of a state to the extent necessary to protect and promote interstate commerce.1849 The right of Congress to use all known and appropriate means for collecting revenue, including the distraint of property for federal taxes,1850 and to exercise the power of eminent domain to acquire property for public use,1851 have greatly extended the range of national power. But the widest application of the Necessary and Proper Clause has occurred in the field of monetary and fiscal controls. Because the various specific powers granted by Article I, § 8, do not add up to a general legislative power over such matters, the Court has relied heavily upon this clause to sustain the comprehensive control that Congress has asserted over this subject.1852

Definition of Punishment and Crimes

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.1853 Illustrative of the offenses which have been punished under this power are the alteration of registered bonds,1854 the bringing of counterfeit bonds into the country,1855 conspiracy to injure prisoners in custody of a United States marshal,1856 impersonation of a federal officer with intent to defraud,1857 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,1858 the receipt by government officials of contributions from government employees for political purposes,1859 and advocating the overthrow of the government by force.1860 Part I of Title 18 of the United States Code comprises more than 500 sections defining penal offenses against the United States.1861

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,1862 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.1863 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.1864

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 insane 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.1865 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.

Chartering of Banks

As an appropriate means for executing “the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies . . . ,” Congress may incorporate banks and kindred institutions.1866 Moreover, it may confer upon them private powers, which, standing alone, have no relation to the functions of the Federal Government, if those privileges are essential to the effective operation of such corporations.1867 Where necessary to meet the competition of state banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business.1868 The Court will not undertake to assess the relative importance of the public and private functions of a financial institution Congress has seen fit to create. It sustained the act setting up the Federal Farm Loan Banks to provide funds for mortgage loans on agricultural land against the contention that the right of the Secretary of the Treasury, which he had not exercised, to use these banks as depositories of public funds, was merely a pretext for chartering those banks for private purposes.1869

Currency Regulations

Reinforced by the necessary and proper clause, the powers “ ‘to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the United States,’ and ‘to borrow money on the credit of the United States and to coin money and regulate the value thereon . . . ,’”1870 have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of state banks,1871 the issuance of treasury notes impressed with the quality of legal tender in payment of private debts1872 and the abrogation of clauses in private contracts, which called for payment in gold coin,1873 were sustained as appropriate measures for carrying into effect some or all of the foregoing powers.

Power to Charter Corporations

In addition to the creation of banks, Congress has been held to have authority to charter a railroad corporation,1874 or a corporation to construct an interstate bridge,1875 as instrumentalities for promoting commerce among the states, and to create corporations to manufacture aircraft1876 or merchant vessels1877 as incidental to the war power.

Courts and Judicial Proceedings

Because the Constitution “delineated only the great outlines of the judicial power . . . , leaving the details to Congress, . . . [t]he distribution and appropriate exercise of the judicial power must . . . be made by laws passed by Congress. . . .”1878 As a necessary and proper provision for the exercise of the jurisdiction conferred by Article III, § 2, Congress may direct the removal from a state to a federal court of a criminal prosecution against a federal officer for acts done under color of federal law,1879 may require the tolling of a state statute of limitations while a state cause of action that is supplemental to a federal claim is pending in federal court,1880 and may authorize the removal before trial of civil cases arising under the laws of the United States.1881 It may prescribe the effect to be given to judicial proceedings of the federal courts1882 and may make all laws necessary for carrying into execution the judgments of federal courts.1883 When a territory is admitted as a state, Congress may designate the court to which the records of the territorial courts shall be transferred and may prescribe the mode for enforcement and review of judgments rendered by those courts.1884 In the exercise of other powers conferred by the Constitution, apart from Article III, Congress may create legislative courts and “clothe them with functions deemed essential or helpful in carrying those powers into execution.”1885

Special Acts Concerning Claims

The Necessary and Proper Clause enables Congress to pass special laws to require other departments of the government to prosecute or adjudicate particular claims, whether asserted by the government itself or by private persons. In 1924,1886 Congress adopted a Joint Resolution directing the President to cause suit to be instituted for the cancellation of certain oil leases alleged to have been obtained from the government by fraud and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. This resolution also authorized the appointment of special counsel to have charge of such litigation. Private acts providing for a review of an order for compensation under the Longshore and Harbor Workers’ Compensation Act,1887 or conferring jurisdiction upon the Court of Claims, after it had denied recovery, to hear and determine certain claims of a contractor against the government, have been held constitutional.1888

Maritime Law

Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law that existed at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction.1889 This power cannot be delegated to the states; hence, acts of Congress that purported to make state workers’ compensation laws applicable to maritime cases were held unconstitutional.1890

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