Simone Lawson
The Necessary and Proper Clause, also known as the Elastic Clause, grants Congress the power to pass laws deemed necessary and proper for effectively exercising its enumerated powers, despite not being expressly granted by Article I, Section 8 of the U.S. Constitution. This clause, also referred to as the Sweeping Clause, gives Congress implied powers to pass laws that may not be specifically listed in the Constitution but are assumed necessary to implement the 27 powers named in Article I. These implied powers have been a source of controversy and debate, as Congress must balance its duty to act in the best interests of its constituents while remaining faithful to the Constitution.
| Characteristics | Values |
|---|---|
| Name of the Clause | Necessary and Proper Clause |
| Other Names | Elastic Clause, Coefficient Clause, Basket Clause, Sweeping Clause |
| Article | I |
| Section | 8 |
| Clause | 18 |
| Powers Granted | Power to pass any laws considered "necessary and proper" for effectively exercising its "enumerated" powers |
| Powers Excluded | Does not give Congress the power to do whatever it wants |
| Landmark Case | McCulloch v. Maryland |
| Year of Landmark Case | 1819 |
| Result of Landmark Case | Unanimous decision that Congress has an implied power to establish a bank |
| Other Cases | NFIB v. Sebelius (2012), Juilliard v. Greenman (1884), Missouri v. Holland (1920) |
| Mentioned in | Federalist #44, Federalist #45, The Federalist No. 33 |
| Authors | James Madison, Alexander Hamilton |
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What You'll Learn
The Necessary and Proper Clause
This clause is significant because it provides Congress with implied powers that are not explicitly enumerated in the Constitution. By granting Congress the authority to make laws necessary and proper for carrying out its enumerated powers, the Necessary and Proper Clause allows for a more flexible and adaptable government. It enables Congress to address issues and situations that may arise that were not specifically envisioned by the Founding Fathers when the Constitution was drafted.
The Supreme Court has played a significant role in interpreting the Necessary and Proper Clause and defining its limits. In the early years of the republic, the Court took a broad view of the clause, upholding congressional acts that were deemed necessary and proper to carry out enumerated powers. However, over time, the Court has also served as a check on congressional power, striking down laws that exceeded the scope of the Necessary and Proper Clause or violated other constitutional principles.
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The Elastic Clause
> "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 was included to address the shortcomings of the Articles of Confederation, which had limited federal power to only those powers expressly delegated to the United States. The Elastic Clause, therefore, grants Congress the implied power to use appropriate means to carry out its enumerated powers.
The interpretation of the Elastic Clause has been a subject of debate, with Supreme Court cases such as McCulloch v. Maryland in 1819 shaping its understanding. In this case, the Court ruled that Congress had the implied power to establish a bank, as it was a suitable instrument to aid in executing its express taxing and spending powers. This case reaffirmed Alexander Hamilton's view that legislation reasonably related to express powers was constitutional.
The concept of implied powers and the Elastic Clause underscores the complexity of constitutional interpretation and the dynamic nature of governance, where unforeseen situations may require Congress to act beyond its express powers.
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Enumerated powers
The US Constitution grants Congress a specific set of powers known as "expressed" or "enumerated" powers. These powers represent the basis of America's system of federalism, which involves the division and sharing of powers between the central government and the state governments.
Article I, Section 8 of the Constitution enumerates a list of federal powers, including both exclusive federal powers and concurrent powers shared with the states. These powers are contrasted with reserved powers that only the states possess.
Some of the enumerated powers granted to Congress by Article I, Section 8 include the power to:
- Lay and collect taxes, duties, imposts, and excises
- Provide for the common defence and general welfare of the United States
- Declare war
- Grant letters of marque and reprisal
- Make rules concerning captures on land and water
- Raise and support armies
- Provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions
- Secure for limited times the exclusive right to their respective writings and discoveries for authors and inventors to promote the progress of science and useful arts
- Define and punish piracies and felonies committed on the high seas, and offences against the law of nations
The interpretation of enumerated powers has been a subject of debate, with strict constructionists arguing that Congress can only make laws if it is necessary to apply one of its enumerated powers. On the other hand, loose constructionists believe that Congress has more leeway in interpreting what means are "necessary and proper" in executing its enumerated powers.
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McCulloch v. Maryland
The Necessary and Proper Clause, also known as the Elastic Clause, grants Congress powers that are not specifically listed in the Constitution but are assumed to be necessary to implement the 27 powers named in Article I. This clause was included in the Constitution to address the shortcomings of the Articles of Confederation, which limited federal power to only those expressly delegated to the United States.
In McCulloch v. Maryland (1819), the Supreme Court interpreted the Necessary and Proper Clause, handing down one of its most important decisions regarding the expansion of federal power. The case involved Congress's power to charter a bank, specifically the Second Bank of the United States, which was established in 1816 to help control the amount of unregulated currency issued by state banks. Many states, including Maryland, questioned the constitutionality of the national bank. Maryland set a precedent by requiring taxes on all banks not chartered by the state. James W. McCulloch, a federal cashier at the Baltimore branch of the U.S. bank, refused to pay the taxes imposed by the state, resulting in a lawsuit against him.
The Supreme Court, in a unanimous decision, sided with McCulloch, ruling that the chartering of a bank was an implied power of the Constitution under the Necessary and Proper Clause. Chief Justice John Marshall observed that the Second Bank was no different from the First Bank of the United States, whose constitutionality had not been challenged. The Court held that the States have no power to impede the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the national government. This decision affirmed the principle that the federal government holds sovereign power over states.
The McCulloch v. Maryland case set a significant precedent in interpreting the Necessary and Proper Clause, giving Congress broad authority to determine what is "necessary" for implementing federal powers. It also sparked a broader debate about the division of powers between state and federal governments, with the Court affirming the supremacy of federal laws made in pursuance of the Constitution. This case demonstrated how the Necessary and Proper Clause allows Congress to exercise implied powers beyond those explicitly stated in the Constitution.
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Congressional powers
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. These powers are outlined in Article I, Section 8 of the Constitution, which begins with the clause, "Congress shall have the power to..."
However, the Constitution also grants Congress certain implied powers beyond those explicitly stated. These implied powers come from the Constitution's "Elastic Clause" or "Necessary and Proper Clause" (also known as the "Sweeping Clause"), which 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 allows Congress to pass laws that are considered "necessary and proper" for effectively exercising its enumerated powers. For example, Congress has the power to raise an army and navy, which implies the power to create an air force. Similarly, the implied powers doctrine allowed Congress to pass the Revenue Act of 1861, creating the nation's first income tax law, and to implement the legally mandatory military draft law, despite these powers not being expressly granted in Article I, Section 8.
The interpretation of the Necessary and Proper Clause has been a source of contention between political parties for several decades. In McCulloch v. Maryland (1819), the Supreme Court's most famous case interpreting the clause, the Court sided with Alexander Hamilton, giving Congress broad authority to determine what is "necessary" for implementing federal powers. However, the Court has also ruled that the Necessary and Proper Clause does not give Congress unlimited power, and it must still act within the scope of the Constitution.
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Frequently asked questions
Implied power is a power that Congress exercises despite not being expressly granted it by Article I, Section 8 of the U.S. Constitution.
The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress implied powers.
The clause states that Congress has 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."
Congress has used its implied powers to pass laws on gun control, income tax, and the military draft.
