What is the Necessary and Proper Clause?

John Marshall, First Chief Justice
John Marshall, First Chief Justice. "John Marshall by Henry Inman, 1832" by Henry Inman - Virginia Memory. Licensed under Public domain.

Also known as the "elastic clause," the necessary and proper clause is one of the most powerful clauses in the Constitution. It is located in Article I, Section 8, Clause 18. It allows the Government of the United States 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 other words, Congress is not limited to the powers actually expressed or enumerated in the Constitution, but also has implied powers to make laws necessary to ensure that their expressed powers can be carried out.

 This has been used for all types of federal actions including requiring integration in the states.

Over the years, the interpretation of the elastic clause has caused a lot of debate and led to numerous court cases about whether or not Congress has overstepped its bounds by passing certain laws not expressly covered in the Constitution.

McCulloch v. Maryland

The first such major Supreme Court Case to deal with this clause in the Constitution was McCulloch v. Maryland (1819). The issue at hand was whether the United States had the power to create the Second Bank of the United States which had not been expressly enumerated in the Constitution. Further, at issue was whether a state had the power to tax said bank. The Supreme Court decided unanimously for the United States. John Marshall, as the Chief Justice, wrote the majority opinion which stated that the bank was allowed because it was necessary to ensure that Congress had the right to tax, borrow, and regulate interstate commerce as granted it in its enumerated powers.

They received this power through the Necessary and Proper Clause. In addition, the court found that a state did not have the power to tax the national government because of Article VI of the Constitution which stated that that national government was supreme. 

Thomas Jefferson and the Elastic Clause

Thomas Jefferson struggled with his own interpretation of this clause when he made the decision to complete the Louisiana Purchase.

He had previously argued against Alexander Hamilton's desire to create a National Bank, stating that all the rights given to Congress were in fact enumerated. However, once president, he realized that there was a pressing need to purchase the territory even though this right was not expressly given to the government. 

Continuing Issues

Even to this day, arguments still center on the extent of the implied powers the elastic clause gives to Congress. The arguments over the role that the national government should play in creating a nationwide health care system often come back to whether or not the elastic clause includes such a move. Needless to say, this powerful clause will continue to result in debate and legal actions for many years to come. 

 

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