elastic clause

Necessary-and-proper clause

The Necessary-and-Proper Clause (also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause) 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.

Early Controversy

The clause provoked controversy during discussions of the proposed constitution. While Democrats 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 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 civil liberties.

National Bank

For many 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 the bank was a reasonable means of carrying out powers related to taxation and the borrowing of funds, claiming that the necessary-and-proper 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: "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 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.

The power of the clause to justify the creation of a national bank was put to the test in 1819 in McCulloch v. Maryland, 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 fulfill its express taking and spending powers. The case reaffirmed Hamilton's view that legislation reasonably related to express powers was constitutional. "Let the end be legitimate," wrote Marshall, "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."

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.

Later Applications

The clause has been paired with the Interstate Commerce Clause to provide the constitutional basis for a wide variety of federal laws, including 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 Supreme Court in Wickard v. Filburn (1942), upheld a federal statute making it a crime for a farmer to eat his own wheat that was subjected to price controls 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 years of the New Deal, the Supreme Court has been reluctant to limit the scope of authority allowed under the combination of these clauses: the Interstate Commerce Clause and the Necessary-and-Proper Clause.

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, 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 Consitutional 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.

The Necessary-and-Proper clause does not require that all Federal laws be necessary and proper. Federal laws that are enacted directly pursuant to one of the enumerated powers need not comply with the clause. As Chief Justice John Marshall (served 1801-1835) stated in McCulloch v. Maryland, 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," 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.).


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