Necessary and Proper Clause

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NECESSARY AND PROPER CLAUSE

The enumeration of powers in Article I, section 8, gives Congress the power to do such specific things as "regulate commerce … among the several States" and "raise and support Armies." At the end of the list is the 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." The antifederalists called this the "elastic clause" or the "sweeping power." They predicted it would centralize all governmental power in the national government. james madison denied this charge in the federalist #23. He observed that the clause spoke of power to execute only those powers that were specified elsewhere in the document, and that the power vested by the clause would have been implicit in the grant of other powers even without the clause. (See implied powers.) The clause, therefore, did not conflict with the principle of enumerated national powers, Madison argued. Events have vindicated Anti-Federalist fears.

thomas jefferson and alexander hamilton took opposing positions on the meaning of the word "necessary" in the clause during their debate in 1791 on the constitutionality of the first bank of the united states act. Hamilton argued that the nation needed a broad construction of congressional powers so that the government could employ a wide variety of means useful to the discharge of its responsibilities. Jefferson countered that a broad construction would enable Congress to encroach upon the reserved powers of the states whenever its measures might serve as means to ends within its enumerated powers. To safeguard states ' rights, such encroachments should be permitted only when "absolutely necessary," said Jefferson—only, that is, when failure to encroach would nullify the grant of federal power. Hamilton's view prevailed first with President george washington in 1791 and later in the Supreme Court, when john marshall's opinion in mcculloch v. maryland upheld the second national bank in 1819.

Marshall construed national powers in terms of a few authorized national ends. Most important, he understood the commerce power and related powers as authorizing the pursuit of national prosperity and the various military and diplomatic powers as authorizing the pursuit of national security. This ends-oriented conception of national powers was the view of The Federalist #41, which also gave greatest emphasis to the goals of national prosperity and security. When Marshall held in McCulloch that Congress could pursue its authorized ends without regard for the reserved powers of the states, he was saying, in effect, that Congress could do what it wanted to relative to state powers so long as it gave the right reasons. Marshall suggested a hierarchy of constitutional values, with state powers subordinated to Congress's version of national prosperity and security. The opinion thus brought virtually all state powers within Congress's potential control, because, with changing conditions, Congress might consider any social practice (education, for example) as an instrument of the nation's prosperity and security.

But to suggest that Congress can act for the right reasons is not to say that Congress can disregard states' rights at will. Marshall's theory of the necessary and proper clause was still consistent with the idea of enumerated powers because it presupposed a limited number of nationally authorized ends. Marshall thus stated that the judiciary would be prepared to invalidate pretextual uses of national power to reach ends reserved to the states. In the twentieth century, the Supreme Court refused to give effect to Marshall's commitment to invalidate pretextual uses of congressional power, thus fulfilling the Anti-Federalist prediction of what the clause eventually would be.

The Court first upheld pretextual uses of power as means to eliminating state bank notes in veazie bank v. fenno (1869) and margarine colored to resemble butter in McRay v. United States (1904). These acts were aimed at what Congress considered the nation's economic health. They were therefore valid under Marshall's theory of the commerce power. But, in the meanwhile, the Court had moved away from Marshall's conception to a limited view of the nation's commerce as those things that crossed state lines. Pretexts were necessary unless the Court chose to abandon this artificial view; instead of correcting the mistake which necessitated pretexts, the Court established precedents for them. Later the Court upheld enactments that obviously were not aimed at the national goals implicit in Congress's enumerated powers. The Court thus upheld the taxing power as a weapon against drug abuse in united states v. doremus (1919) and the commerce power as a means of combating gambling, illicit sex, and other practices usually said to be reserved to the state police power, asin hoke v. united states (1913). These decisions turned Marshall's theory of the necessary and proper clause on its head. Where Marshall had upheld incursions into state powers as means to nationally authorized ends, the Court was now upholding national powers as means to state ends. As a result the national police power can today be used to reach an indefinite variety of purposes, and the necessary and proper clause authorizes almost anything that might be useful for addressing what Congress views as a national problem.

Limits on national power do remain in the bill of rights, in other sources of individual rights such as the civil war amendments, and in principles derived from the Constitution's institutional arrangements. Because the states do constitute a part of those arrangements, the Court still says it will protect various state rights to participate in federal government action, such as the right to equal representation in the Senate. But such states' rights limitations on national power are of little contemporary significance. For the most part, the necessary and proper clause has been construed in a way that has destroyed the notion that the enumeration of powers limits the national government.

Sotirios A. Barber
(1986)