Necessary and Proper Clause

Necessary and Proper Clause Definition

All grants of power to Congress in § 8, as elsewhere, must be read in conjunction with the Necessary and Proper Clause, § 8, cl. 18, which authorizes Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers.” Chief Justice Marshall alluded to the power thus enhanced by this clause when he said that the regulatory power did not extend “to those internal concerns [of a state] . . . with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.” 1 There are numerous cases permitting Congress to reach “purely” intrastate activities on the theory, combined with the previously mentioned emphasis on the cumulative effect of minor transactions, that it is necessary to regulate them in order that the relation of interstate activities might be fully effectuated.2 In other cases, the clause may not have been directly cited, but the dictates of Chief Justice Marshall have been used to justify more expansive applications of the commerce power.3

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References

This text about Necessary and Proper Clause is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824).

[Footnote 2] E.g., Houston & Texas Ry. v. United States, 234 U.S. 342 (1914) (necessary for ICC to regulate rates of an intrastate train in order to effectuate its rate setting for a competing interstate train); Wisconsin R.R. Comm'n v. Chicago, B. & Q. R.R., 257 U.S. 563 (1922) (same); Southern Ry. v. United States, 222 U.S. 20 (1911) (upholding requirement of same safety equipment on intrastate as interstate trains). See also Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942); Gonzales v. Raich, 545 U.S. 1 (2005).

[Footnote 3] See, e.g., United States v. Darby, 312 U.S. 100, 115-16 (1941).

Clause 18. Necessary and Proper Clause

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 the Constitution in the Government of the United States, or in any Department or Officer thereof.

Scope and Operation of the Clause

The Necessary and Proper Clause, sometimes called the “coefficient” or “elastic” clause, is an enlargement, not a constriction, of the powers expressly granted to Congress. Chief Justice Marshall's classic opinion in McCulloch v. Maryland 4 set the standard in words that reverberate to this day. “Let the end be legitimate,” he wrote, “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.” 5 Moreover, the provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments.6

More about Scope and Operation of the Clause

Practically every power of the National Government has been expanded in some degree by the Necessary and Proper Clause. Under the authority granted it by that clause, Congress has adopted measures requisite to discharge the treaty obligations of the nation, 7 has organized the federal judicial system, and has enacted a large body of law defining and punishing crimes. Effective control of the national economy has been made possible by the authority to regulate the internal commerce of a state to the extent necessary to protect and promote interstate commerce.8 The right of Congress to use all known and appropriate means for collecting revenue, including the distraint of property for federal taxes,9 and to exercise the power of eminent domain to acquire property for public use,10 have greatly extended the range of national power. But the widest application of the Necessary and Proper Clause has occurred in the field of monetary and fiscal controls. Because the various specific powers granted by Article I, § 8, do not add up to a general legislative power over such matters, the Court has relied heavily upon this clause to sustain the comprehensive control that Congress has asserted over this subject.11

Resources

References

This text about Necessary and Proper Clause is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 4] 17 U.S. (4 Wheat.) 316 (1819).

[Footnote 5] 17 U.S. at 420. This decision had been clearly foreshadowed fourteen years earlier by Marshall's opinion in United States v. Fisher, 6 U.S. (2 Cr.) 358, 396 (1805). Upholding an act which gave priority to claims of the United States against the estate of a bankrupt he wrote: “The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittance, by bills or otherwise, and to take those precautions which will render the transaction safe.”

[Footnote 6] See “Delegation of Legislative Power,” supra.

[Footnote 7] Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252 U.S. 416 (1920).

[Footnote 8] See discussion of “Necessary and Proper Clause” under the commerce power, supra.

[Footnote 9] Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 281 (1856). Congress may also legislate to protect its spending power. Sabri v. United States, 541 U.S. 600 (2004) (upholding imposition of criminal penalties for bribery of state and local officials administering programs receiving federal funds).

[Footnote 10] Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Fox, 95 U.S. 670 (1878).

[Footnote 11] See “Fiscal and Monetary Powers of Congress,” supra.

Tables of Contents

• Necessary and Proper Clause and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Necessary and Proper Clause and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)

Treaties and the Necessary and Proper Clause

What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress's enumerated powers, then it is these powers that it exercises in carrying the treaty into effect. But if the treaty deals with a subject that falls within the national jurisdiction because of its international character, then recourse is had to the Necessary and Proper Clause. Thus, of itself, Congress would have had no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.12 Congress could not confer judicial power upon American consuls abroad to be exercised over American citizens abroad, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements, and the Supreme Court has upheld such legislation.13

More about Necessary and Proper Clause

Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect.14 And Congress could not ordinarily penalize private acts of violence within a state, but it can punish such acts if they deprive aliens of their rights under a treaty.15 Referring to such legislation, the Court has said: “The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with foreign power.” 16 In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress's enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures that independently of a treaty Congress could not enact; the only question that can be raised as to such measures is whether they are “necessary and proper” for the carrying of the treaty in question into operation.

Necessary and Proper Clause: Developments

The foremost example of this interpretation is Missouri v. Holland. 17 There, the United States and Great Britain had entered into a treaty for the protection of migratory birds,18 and Congress had enacted legislation pursuant to the treaty to effectuate it.19 Missouri objected that such regulation was reserved to the states by the Tenth Amendment and that the statute infringed on this reservation, pointing to lower court decisions voiding an earlier act not based on a treaty.20 Noting that treaties “are declared the supreme law of the land,” Justice Holmes for the Court said: “If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.” 21 “It is obvious,” he continued, “that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found.” 22 Because the treaty and thus the statute dealt with a matter of national and international concern, the treaty was proper and the statute was “necessary and proper” to effectuate the treaty.

Resources

References

This text about Necessary and Proper Clause is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 12] Acts of March 2, 1829, 4 Stat. 359 and of February 24, 1855, 10 Stat. 614.

[Footnote 13] See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are given. The supplementary legislation, later reenacted at Rev. Stat. 4083-4091, was repealed by the Joint Res. of August 1, 1956, 70 Stat. 774. The validity of the Ross case was subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12, 64, 75 (1957).

[Footnote 14] 18 U.S.C. §§ 3181-3195.

[Footnote 15] Baldwin v. Franks, 120 U.S. 678, 683 (1887).

[Footnote 16] Neely v. Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by Justice Story in his opinion for the court in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842): “Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties.” Id. at 619. Story was here in quest of arguments to prove that Congress had power to enact a fugitive slave law, which he based on its power “to carry into effect rights expressly given and duties expressly enjoined” by the Constitution. Id. at 618-19. However, the treaty-making power is neither a right nor a duty, but one of the powers “vested by this Constitution in the Government of the United States.” Art. I, § 8, cl. 18.

[Footnote 17] 252 U.S. 416 (1920).

[Footnote 18] 39 Stat. 1702 (1916).

[Footnote 19] 40 Stat. 755 (1918).

[Footnote 20] United States v. Shauver, 214 F. 154 (E.D. Ark. 1914); United States v. Mc- Cullagh, 221 F. 288 (D. Kan. 1915). The Court did not purport to decide whether those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920). Today, there seems no doubt that Congress's power under the commerce clause would be deemed more than adequate, but at that time a majority of the Court had a very restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918).

[Footnote 21] Missouri v. Holland, 252 U.S. 416, 432 (1920).

[Footnote 22] 252 U.S. at 433. The internal quotation is from Andrews v. Andrews, 188 U.S. 14, 33 (1903).