Necessary and Proper Clause

Necessary and Proper Clause Definition

The "Necessary and Proper Clause" (also called the Elastic Clause) is a piece of the Constitution that gives Congress the authority to pass laws about things that aren't necessarily listed in the Constitution.

Necessary and Proper Clause Text

Article I is all about legislative powers (Article II is about the Executive powers and Article III is about Judicial powers). There's a long list of items that the Constitution explicitly gives Congress power over, for example, the power to:

1. Collect taxes
2. Pay off debts
3. Borrow money
4. Regulate interstate commerce (see the Commerce Clause)
5. Coin money
6. Establish post offices
7. Punish piracy and crimes committed at sea
8. Create a military

At the end of this list is the extremely important "Necessary and Proper Clause"! It reads like this (emphasis added):

Necessary and Proper Clause Explained

To understand the Necessary and Proper Clause, we need to understand what was going on at the time it was added.

Constitutional Convention

The Constitutional Convention came at a critical time in US history. The states had won the Revolutionary War in 1783 and the right to create their own country. However, the process of building a new country proved much more difficult than just winning the war.

The Articles of Confederation had been passed in 1781 as the very first framework for the United States, but they quickly created massive problems. The Constitutional Convention in 1787 was a crucial time for the members of Congress to learn from their mistakes and create a stronger central government.

Figure 1: A painting depicting the Constitutional Convention in 1787. Source: Wikimedia Commons

Federalists vs. Antifederalists

There were two main factions at the Constitutional Convention: the Federalists and the Antifederalists. The Federalists looked at the problems in the Articles of Confederation and favored creating a strong federal government that was more powerful than the state governments. The Antifederalists acknowledged that there were problems in the Articles, but they feared that the Federalists would make a central government that was so strong that it would become oppressive and abusive.

Their debates came to a head over the Necessary and Proper Clause. The Federalists argued that it was necessary because the needs of the country would change over time, so the Constitution needed to be flexible enough to accommodate other issues. On the other hand, the Antifederalists argued that the clause would give the central government almost unlimited power. They feared that Congress could use the clause to justify almost any action.

In the end, the Federalists won. The Constitution was ratified with the Necessary and Proper Clause.

Necessary and Proper Clause Elastic Clause

The Necessary and Proper Clause is sometimes called the "Elastic Clause" because it gives Congress some flexibility and elasticity in its powers. Basically, this means that Congress's powers can stretch and retract over time based on the country's needs.

Enumerated and Implied Powers

Enumerated means something that is listed. In the context of the Constitution, enumerated powers are those that the Constitution explicitly gives Congress. Check out the list earlier in this explanation for an overview of Congress's enumerated powers!

The Constitution also includes implied powers. Implied powers are those that you can read in between the lines of the enumerated powers. The Necessary and Proper Clause is extremely important for implied powers because the Constitution specifically states that Congress can make laws about other areas that are necessary and proper for carrying out the enumerated powers.

Necessary and Proper Clause Examples

Because the Constitution doesn't go into much detail about what qualifies as "necessary and proper," conflicts often go to the Supreme Court to decide.

McCulloch v. Maryland

The first Supreme Court case about the Necessary and Proper Clause is McCulloch v. Maryland (1819). Congress gave a 20-year charter to the First National Bank of the United States after the Constitution was passed, but the antifederalists were strongly against it. When the bank's charter expired, it was never renewed.

After the war of 1812, Congress voted to create the Second National Bank of the United States. One branch opened in Baltimore, Maryland. Maryland's legislature was upset about the presence of the national bank and what they viewed as an infringement on the state's authority. They imposed a steep tax on the national bank, which would have forced it to close. However, one bank teller named James McCulloch refused to pay the tax. The case went to the Supreme Court to determine whether 1) Congress had the authority to create a national bank, and 2) whether Maryland had unconstitutionally obstructed Congress's powers.

The Supreme Court unanimously sided with McCulloch. They determined that the Necessary and Proper Clause did give Congress the authority to create a national bank since Congress had the authority to coin money, pay debts, regulate commerce, etc. They also said that Maryland had violated the Supremacy Clause, which says that federal laws take precedence over state laws. Chief Justice Marshall established that courts should adopt an expansive (rather than restrictive) interpretation of the Necessary and Proper Clause, saying:

Figure 2: The case of McCulloch v. Maryland established that the federal government had the authority to create a national bank. Source: Wikimedia Commons

Criminal Punishment

You may notice that the Constitution doesn't specifically give Congress the authority to decide what is a crime or not, yet it's a very important part of Congress's job today! Over time, Congress has passed laws to make certain things illegal.

Other Examples

Below are some other examples of areas over which Congress does not explicitly have power, but have been deemed valid because of the Necessary and Proper Clause:

• Creating the Federal judicial system
• Regulating the economy
• Enacting eminent domain
• Monetary and fiscal policy
• Criminalizing and legalizing drugs
• Regulating gun control
• Creating and regulating healthcare
• Protecting the environment

This is just a short list of the many areas that Congress has expanded its powers into throughout US history!

Figure 3: One of the most important pieces of healthcare legislation, the Affordable Care Act (2014), was passed using Congress's authority under the Necessary and Proper Clause. Source: Office of Nancy Pelosi, Wikimedia Commons, CC-BY-2.0

Necessary and Proper Clause Significance

As the country changes, so do our interpretations of the Necessary and Proper Clause. When the Constitutional Convention happened, they intended the Constitution to be a pretty comprehensive list of the powers they thought Congress would need. It was assumed that Congress didn't have the power unless they could make a strong case that it was tied to an enumerated power.

However, the Civil War in the 1860s led to an expansion of Congress's power. The federal government asserted its authority over the state governments when southern states tried to secede. Congress adopted a more expansive view of the Necessary and Proper Clause. Throughout the 19th and 20th centuries, the prevailing view was that Congress DID have the power to expand its authority into new areas unless it was explicitly prohibited by the Constitution.