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The Necessary and Proper Clause (also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause[1]) is the provision in Article One of the United States Constitution, 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. | ” |
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The clause provoked controversy during discussions of the proposed constitution, and its inclusion became a focal point of criticism for those opposed to the Constitution's ratification. While Anti-Federalists expressed concern that the clause would grant the federal government boundless power, Federalists argued that the clause would only permit execution of power already granted by the Constitution. Alexander Hamilton spoke vigorously for this second interpretation in the Federalist Papers as part of his argument for why the federal government required the powers of taxation. At this time James Madison concurred with Hamilton, arguing in Federalist No. 44 that without this clause, the constitution would be a "dead letter". At the Virginia Ratifying Convention, Patrick Henry took the opposing view, saying that the clause would lead to limitless federal power that would inevitably menace individual liberty.[2]
For several decades after the Constitution was ratified, the interpretation of the Necessary and Proper Clause continued to be a powerful bone of contention between the Democratic-Republican Party and the Federalist Party, and several other political parties in the United States. The first practical example of this contention came in 1791, when Hamilton used the clause to defend the constitutionality of the creation of the First Bank of the United States, the first federal bank in the new nation's history. Concerned that monied Northern aristocrats would take advantage of the bank to exploit the South, Madison now argued that congress lacked the constitutional authority to charter a bank. Hamilton argued that the bank was a reasonable means of carrying out powers related to taxation and the borrowing of funds, claiming the clause applied to activities reasonably related to constitutional powers, not just those that were absolutely necessary to carry out said powers. To embarrass Madison, his contrary claims from the Federalist Papers were read aloud in congress:[3] "No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included." Eventually Southern opposition both to the bank and to Hamilton's plan to have the federal government assume the war debts of the states was mollified by the transfer of the nation's capital from its temporary seat in Philadelphia to a more southerly permanent seat on the Potomac, and the bill, along with the establishment of a national mint, was passed by congress and signed by President Washington.[4]
The power of the clause to justify the creation of a national bank was put to the test in 1819 in McCulloch v. Maryland,[5] wherein the state of Maryland had attempted to impede the operations of the Second Bank of the United States by imposing a tax on out-of-state banks, of which the Second Bank of the United States was the only one. The court ruled against Maryland, and Chief Justice John Marshall wrote the opinion, which stated that while the Constitution did not explicitly give permission to create a federal bank, it had the implied power to do so under the Necessary and Proper Clause in order to realize or fulfill its express taxing and spending powers. The case reaffirmed Hamilton's view that legislation reasonably related to express powers was constitutional. "We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, 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," wrote Marshall.
In addition to these powers to charter and operate federal banks, the clause was linked to the General Welfare clause and the constitutional powers of tax collection and the ability to borrow money to give the federal government virtually complete control over currency.[6]
The clause has been paired with the Commerce Clause to provide the constitutional basis for a wide variety of federal laws. For instance, various reforms involved in the New Deal were found to be necessary and proper enactments of the objective of regulating interstate commerce.[7]
Indeed, the influence of the Necessary and Proper Clause and its broader interpretation under McCulloch v. Maryland in American jurisprudence can be seen in cases generally thought to simply involve the Commerce Clause.
In Wickard v. Filburn, the Supreme Court upheld a federal statute making it a crime for a farmer to produce more wheat than was allowed under price controls and production controls, even if the excess production was for the farmer's own personal consumption. The Necessary and Proper Clause was used to justify the regulation of production and consumption.[8]
In addition to this combination of clauses being used to uphold federal laws affecting economic activity, they also were used to justify federal criminal laws. For example, Congress in the Federal Kidnapping Act made it a federal 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. It has also provided justification for a wide range of criminal laws relating to interference with the federal government's rightful operation, including federal laws against assaulting or murdering federal employees.
The specific term "Necessary and Proper Clause" was coined in 1926 by Associate Justice Louis Brandeis, writing for the majority in the Supreme Court decision in Lambert v. Yellowley, 272 U.S. 581 (1926), wherein the court upheld a law restricting medicinal use of alcohol as a necessary and proper exercise of power under the 18th Amendment establishing Prohibition in the United States.
This phrase has become the label of choice for this constitutional clause, and it was universally adopted by the courts, and it received Congress's imprimatur in Title 50 of the United States Code, section 1541(b) (1994), in the purpose and policy of the War Powers Resolution.[9]
The court in McCulloch v. Maryland[5] held that all Federal laws need not be "absolutely necessary" to be necessary and proper, and noted that "The clause is placed among the powers of Congress, not among the limitations on those powers." At the same time, it reasserted the power of judicial review established in Marbury v. Madison, declaring that it had the power to strike down laws that departed from those powers: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."