The necessary and proper clause allows – to enact laws related to its – powers.

Standard 5.1: The Necessary and Proper Clause

Explain the necessary and proper clause and why it is often referred to as the “elastic clause.” (Massachusetts Curriculum Framework for History and Social Studies) [8.T5.1]

FOCUS QUESTION: What is the Role of the Necessary and Proper Clause?

The Necessary and Proper Clause (also known as the Elastic Clause) is one of the most far-reaching aspects of the United States Constitution. Article 1, Section 8, Clause 18 of the Constitution reads:

"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."

Legal scholars have called it the "single most important provision in the Constitution" (The Necessary and Proper Clause).

There is an inherent tension between the necessary and proper clause and the 10th Amendment. While the necessary and proper clause states Congress can make the laws needed to carry out its Constitutional functions, the 10th Amendment states powers not delegated to the federal government are given to the states. As a result, there are ongoing disputes over which part of government (federal or state) has the power to take certain actions.

You can learn more about the 10th Amendment in Topic 6.5 of this book.

History of the Necessary and Proper Clause

In writing the Constitution, the framers gave Congress both defined and assumed powers. "Defined" means specified and fixed powers. "Assumed" means that Congress may enact any law that can be seen as: 1) necessary; 2) proper; and 3) carries out federal power (McDaniel, 2019). You can read text and commentary about the Necessary and Proper Clause from National Constitution Center's Interactive Constitution website.

Reviewing the origins of the necessary and proper clause, Doug Linder of the University of Missouri-Kansas City School of Law explained that Alexander Hamilton and Thomas Jefferson had sharply opposing views about the clause and its uses.

Hamilton who favored a strong central government saw the elastic clause as a broad license to act whenever needed.

Jefferson who wanted a smaller, more limited federal government, thought this power should be used only when absolutely necessary.

Still, Linder notes, it was Jefferson who authorized the Louisiana Purchase even though he was not sure he had the power to do so.

Uses of the necessary and proper clause during the 20th Century are listed on its Wikipedia page, including the Federal Kidnapping Act of 1932 which made transporting a kidnapped person across state lines a federal crime under the Constitution's Commerce Clause.

In Printz v. United States (1997), the Supreme Court ruled that requiring states to follow federal gun registration rules was not proper it because it infringed on the powers of states.

In the 2012 case National Federation of Independent Business v. Sebelius, the Supreme Court said Congress could not use the necessary and proper clause to justify the individual mandate feature of the Affordable Care Act (also known as Obamacare).

You can learn more about the enumerated and implied powers of government in Topic 6.3 of this book.

Suggested Learning Activities

• Role-Play a Landmark Case
  • In small groups,
    • Select a legal case in which the Necessary and Proper Clause was used
    • Create a video in which you role-play the most influential aspects of the case and the use of the clause

• State Your View
  • Discuss and debate: How broad should the powers of Congress be under the elastic clause?

Online Resources for the Necessary and Proper Clause

• Sharing the Necessary and Proper Clause: The indeterminacy of deference, Harvard Law Review
• McCulloch v. Maryland (1819) from the Bill of Rights Institute

While the Constitution explicitly states certain congressional powers, the Constitution also gives Congress the implied power to carry out its enumerated powers. The following explains what enumerated powers Congress has and what implied authority Congress has to carry out its enumerated powers.

Article I, Section 8, Clause 18 is commonly referred to as the Necessary and Proper Clause. According to this provision of the Constitution, Congress can pass laws necessary for it to exercise its enumerated powers through the passage of "necessary and proper" legislation.

What the Necessary and Proper Clause Says

"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."

What It Means

The United States Constitution gives Congress certain enumerated powers. "Enumerated" means that the Constitution explicitly states powers that Congress has. Congress's enumerated powers include the power to:

• Tax
• Regulate commerce
• Establish naturalization and bankruptcy laws
• Coin money
• Punish counterfeiters
• Establish post offices and roads
• Regulate patents and copyrights
• Establish lower courts
• Establish piracy laws
• Declare war
• Raise and support an Army
• Provide and maintain a Navy
• Regulate a militia
• Authority to govern D.C. and other properties for the federal government's purposes

The necessary and proper clause gives Congress more latitude to "play in the joints." They can pass legislation in other areas if it helps to further the responsibilities laid out in their enumerated powers.

The Necessary and Proper Clause in Practice

A seminal Supreme Court case of American jurisprudence is McCulloch v. Maryland. In McCulloch, the Court explained how Congress is to apply its power given through the Necessary and Proper Clause. Chief Justice John Marshall explained in his opinion that "[i]f the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted that end, and which are not prohibited, may constitutionally be employed to carry it into effect."

The Court held that Congress has the authority to pass any law that would allow it to fully exercise its enumerated powers as long as it does not violate any other provision of the Constitution.

In McCulloch, the Court gave Congress the power to establish a national bank through the Necessary and Proper Clause based on its enumerated power to tax and spend. As a result of McCulloch, Congress can now enact legislation that it deems necessary and appropriate to accomplish a goal of an enumerated power, so long as the legislation is constitutional. The constitutionality of the actions of Congress is the subject of much debate. However, the precedent has given Congress a broad amount of power and freedom to determine necessary.

Related Resources

• Article I- U.S. Constitution
• The First Amendment's Free Exercise Clause: Overview

What does the Necessary and Proper Clause allow?

What Powers include Laws that are necessary and proper?

Which of Congress power is implied through the Necessary and Proper Clause?

Does the Necessary and Proper Clause give too much power?