Simone Lawson
The US Constitution grants Congress a specific set of powers known as expressed or enumerated powers, which represent the basis of America's system of federalism. Article I, Section 8, Clause 18, also known as the Necessary and Proper Clause or the Elastic Clause, grants Congress implied powers to make all Laws which shall be necessary and proper for executing its enumerated powers. This clause has been the subject of debate and interpretation, with the Supreme Court case McCulloch v. Maryland in 1819 giving Congress broad authority to determine what is `necessary` for implementing federal powers. The Necessary and Proper Clause allows Congress to pass laws that may not be specifically outlined in the Constitution but are assumed to be necessary to implement the expressed powers.
| Characteristics | Values |
|---|---|
| Article | I |
| Section | 8 |
| Clause | 18 |
| Powers | 27 expressed powers |
| Name | Necessary and Proper Clause, Elastic Clause, Coefficient Clause, Basket Clause, Sweeping Clause |
| Interpretation | Congress has the legislative 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 |
| Landmark Case | McCulloch v. Maryland (1819) |
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What You'll Learn
The McCulloch v. Maryland case of 1819
The dispute in McCulloch v. Maryland involved the legality of the national bank and a tax that the state of Maryland imposed on it. The Second Bank of the United States was created by the US Congress in 1816. The following year, the Bank opened a branch in Baltimore, Maryland, where it carried out all the normal operations of a bank. In 1818, the Maryland legislature voted to impose a tax on all banks within the state that were not chartered by the legislature. The Second Bank of the United States refused to comply with the law, resulting in a lawsuit against its head, James William McCulloch.
The state successfully argued on appeal to the state appellate court that the Second Bank was unconstitutional because the Constitution did not provide a textual commitment for the federal government to charter a bank. The Supreme Court, however, ruled in favour of McCulloch, establishing that the "Necessary and Proper" Clause of the US Constitution gives the US federal government certain implied powers necessary and proper for the exercise of the powers enumerated explicitly in the Constitution. Chief Justice Marshall determined that Maryland could not tax the bank without violating the Constitution, as "the power to tax involves the power to destroy". The Court thus struck down the tax as an unconstitutional attempt by a state to interfere with a federal institution, in violation of the Supremacy Clause.
The McCulloch v. Maryland case has had a significant influence on nations with similar legal systems, such as Australia. The decision was cited in the first substantial constitutional case presented before the High Court of Australia in D'Emden v Pedder (1904), which dealt with similar issues in the Australian Federation.
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The Elastic Clause
One of the most significant cases involving the Elastic Clause is McCulloch v. Maryland in 1819. In this case, the Supreme Court, led by Chief Justice John Marshall, interpreted the clause as granting Congress broad implied powers. Marshall, convinced by Hamilton's argument, held that the Constitution's grant of enumerated powers to Congress included the means to make their exercise effective. This decision settled that Congress's implied powers are extensive and cover areas like the power to tax and spend for the general welfare and regulate interstate commerce.
In conclusion, the Elastic Clause is a critical component of the US Constitution, providing Congress with the flexibility to address unforeseeable situations and issues. While it grants Congress implied powers, the ongoing discussions surrounding its application and limits demonstrate the complexity and evolving nature of constitutional interpretation.
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The implied power to tax
While Article I gives Congress the broad power to "lay and collect Taxes", the implied powers under the Elastic Clause have been used to pass tax laws that may not be specifically enumerated in the Constitution. For example, Congress passed the Revenue Act of 1861, creating the nation's first income tax law, by citing its implied powers.
The Necessary and Proper Clause was included in the Constitution to address the limitations of the Articles of Confederation, which restricted federal power to only those powers expressly delegated to the United States. The Framers of the Constitution intended to provide Congress with the flexibility to address unforeseen situations and issues.
The interpretation of the Necessary and Proper Clause has been a subject of debate, with the Supreme Court playing a significant role in defining its scope. In McCulloch v. Maryland (1819), the Supreme Court held that Congress had implied powers beyond those explicitly stated, including the power to establish a bank. Chief Justice John Marshall's opinion in this case closely followed Hamilton's argument that the Constitution's grant of enumerated powers carried with it the means to make their exercise effective.
The McCulloch decision established that Congress has very broad implied powers, particularly when combined with other broad enumerated powers such as the power to tax and spend for the general welfare and the power to regulate interstate commerce. As a result, there are very few areas that are beyond the regulatory reach of the national government.
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The implied power to regulate commerce
The US Constitution grants Congress a specific set of powers known as "expressed" or "enumerated" powers, which form the basis of America's system of federalism. However, the concept of implied powers in the Constitution is not new. The framers of the Constitution understood that the 27 expressed powers listed in Article I, Section 8, would not be adequate to address all the unforeseeable situations and issues that Congress would need to confront.
One of the most significant implied powers of Congress is derived from the Commerce Clause, also known as Article 1, Section 8, Clause 3 of the US Constitution. The Commerce Clause grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This clause has been interpreted broadly and has been a source of controversy regarding the balance of power between the federal government and the states.
The Commerce Clause has been used by Congress to justify exercising legislative power over the activities of states and their citizens. This power has been interpreted to include the authority to regulate interstate commerce and restrict states from impairing interstate commerce. The Supreme Court has played a crucial role in interpreting the scope of the Commerce Clause, with landmark cases such as Gibbons v. Ogden in 1824 and NLRB v. Jones & Laughlin Steel Corp in 1937, shaping the understanding of Congress's power under this clause.
The interpretation of the term "commerce" itself has been a subject of debate. Some argue that it refers simply to trade or exchange, while others contend that the framers intended a broader interpretation, encompassing commercial and social intercourse between citizens of different states. This ambiguity has allowed Congress to pass laws on various issues, including gun control, federal minimum wage, and income tax, by citing its authority under the Commerce Clause.
In conclusion, the implied power to regulate commerce, derived from the Commerce Clause, has been a significant tool for Congress to address issues beyond the express powers granted in the Constitution. While it has faced legal challenges and interpretations have evolved over time, it remains a crucial aspect of Congress's authority and continues to shape the balance of power between the federal government and the states.
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The implied power to establish a bank
The US Constitution does not specifically grant Congress the power to establish a bank. However, in the landmark Supreme Court case McCulloch v. Maryland (1819), the court ruled that the establishment of a national bank was within Congress's implied powers under the Necessary and Proper Clause (also known as the Elastic Clause).
The Necessary and Proper Clause, found in Article I, Section 8, Clause 18 of the Constitution, grants Congress the 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."
This clause gives Congress the authority to use all appropriate means necessary to carry out its enumerated powers, even if those means are not specifically listed in the Constitution.
In 1816, Congress established the Second Bank of the United States to help control the amount of unregulated currency issued by state banks. Many states, including Maryland, questioned the constitutionality of the national bank. In 1818, Maryland approved legislation to impose taxes on the Second Bank of the United States. James W. McCulloch, a federal cashier at the Baltimore branch of the bank, refused to pay the taxes, leading to the Supreme Court case McCulloch v. Maryland.
In his opinion on the case, Chief Justice John Marshall upheld the constitutionality of Congress's power to establish a national bank. Marshall agreed with the argument made by Alexander Hamilton in 1791 when defending the creation of the First Bank of the United States. Hamilton argued that the "general welfare" and "necessary and proper" clauses of the Constitution gave it elasticity, implying powers beyond those explicitly stated. Marshall's decision set a precedent for interpreting the Necessary and Proper Clause as granting Congress implied powers to pass laws necessary and proper for carrying out its enumerated powers.
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Frequently asked questions
The Necessary and Proper Clause, also known as the Elastic Clause, grants Congress implied powers.
The clause states that Congress has the legislative 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".
In 1819, the Supreme Court's McCulloch v. Maryland case interpreted the Necessary and Proper Clause, giving Congress very broad authority to determine what is necessary for implementing federal powers. This case is considered one of the most important in US history as it settled that the scope of Congress's implied powers is extensive.
The Enumerated Powers of Congress are specifically listed in Article I, Section 8 of the Constitution, whereas the Necessary and Proper Clause grants Congress powers that are not explicitly listed but are assumed to be necessary to implement the Enumerated Powers.
