The necessary and proper clause (also known as the elastic clause, the basket clause, the coefficient clause, and the sweeping clause^[1]) refers to a provision, in Article One of the United States Constitution at section eight, clause 18, which addresses implied powers of Congress.

Text

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.

Interpretation

Like many others in the Constitution, the necessary and proper clause is open to interpretation, and reasonable minds can disagree over what laws are "necessary and proper" for Congress to exercise the express powers granted to it by the Constitution. Not surprisingly then, its interpretation has been controversial, especially during the early years of the republic, and with the powers asserted under the New Deal. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers ("foregoing powers"). Others argue that the elastic clause expands the authority of Congress to not only "carry into execution" the enumerated powers, but to get whatever result those who apply an express power might seek in doing so. It is often known as the elastic clause because of the great amount of leeway in interpretation it seems to allow; depending on the interpretation, it can be used to "stretch" or expand the powers of Congress, or allowed to "contract," limiting the implied powers of Congress by the expansion of the implied powers of other branches. It is usually held, however, that it may not be used to deprive other governmental branches of powers expressly granted to them in the Constitution.

The chartering of the Bank of the United States led to a defining legal interpretation of the clause. Although the Constitution does not explicitly give Congress the authority to establish a national bank, the move was justified by proponents as a "necessary and proper" exercise of Congress' authority to make laws regulating interstate commerce under the commerce clause. When George Washington asked Alexander Hamilton to defend the constitutionality of the measure against the protests of Thomas Jefferson, James Madison, and Attorney General Edmund Randolph, Hamilton produced a classic statement for implied powers. Hamilton, a Federalist, argued that the necessary and proper clause granted Congress the power to charter a bank, while Jefferson, a Democratic-Republican, interpreted the Constitution more strictly, believing Congress' power limited to the enumerated powers. The Federalists, as the majority party, were able to pass legislation establishing the national bank.

The national bank was controversial, and the state of Maryland later attempted to impede operation of a branch of the bank by imposing a tax on all notes of banks not chartered in Maryland. Though the law was generally applicable, the U.S. Bank was the only out-of-state bank then existing in Maryland, and the law was generally recognized as specifically targeting the U.S. Bank. The U.S. bank's refusal to pay the tax led to the Supreme Court case McCulloch v. Maryland, in which the court held that because the Congress has the power to control national economic policy, creating a national bank is necessary and proper to carry out its duties. Chief Justice John Marshall, writing for the majority, also held that because federal laws have supremacy over state laws, Maryland had no power to interfere with the bank's operation by taxing it.

The clause has been paired with the commerce clause to provide the constitutional basis for a wide variety of laws, including criminal laws, which were not considered implied powers of a power to regulate by Founders such as Thomas Jefferson^[2] and James Madison.^[3] For example, Congress has made it a crime to transport a kidnapped person across state lines, because the transportation would be an act of interstate activity over which the Congress has power. The Supreme Court in 1942 sustained in Wickard v. Filburn a federal statute making it a crime for a farmer to eat his own corn that was subjected to price and production controls. A series of Supreme Court decisions resulting in the desegregation of private businesses, such as hotels and restaurants, were supported on the basis that these business establishments, although not directly engaged in interstate commerce, no doubt had an effect on it. Since the New Deal the Supreme Court has been reluctant to limit the scope of authority allowed under the combination of these clauses. United States v. Lopez was the first modern case finding limits to Congress's authority in this regard.

The term "necessary and proper clause" comes from the 1926 Supreme Court case Lambert v. Yellowley, 272 U.S. 581, 596 (1926). Justice Brandeis, writing for the majority, referred to it as the "Necessary and Proper clause." The phrase became the label of choice and was universally adopted by the courts and received Congress' imprimatur. (see the heading of hr>000-.html 50 U.S.C. § 1541(b) (1994) (purpose and policy of war powers resolution)).

The clause does not require that all federal laws be necessary and proper; federal laws that are enacted directly pursuant to one of the express enumerated powers need not comply with the clause. As Chief Justice Marshall put it, this clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted." McCulloch v. Maryland, 17 U.S. 316, 420 (1819) quoted in Printz v. United States, 521 U.S. 898 (1997) (Stevens, J., dissenting, joined by Souter, Ginsburg & Breyer, JJ.).

References

See also

• Debates in the Federal Convention of 1787, James Madison.
• The Virginia Report, J.W. Randolph, ed. (1850) — Documents and commentary arising out of the controversies attending the Alien and Sedition Acts, including the Kentucky Resolutions of 1798 and 1799 and the Virginia Resolution of 1798, which set forth the "Doctrine of '98" concerning constitutional interpretation, and led to the "Revolution of 1800", the dominance of the Jeffersonians, and the demise of the Federalist Party.
• Jefferson

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