What is the purpose of the Necessary and Proper Clause Why is it sometimes referred to as the elastic 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 this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Necessary and Proper Clause Footnote
Although “Necessary and Proper Clause” is the modern term for the constitutional provision, historically it was often called the “Sweeping Clause.” See, e.g., The Federalist No. 33, at 205 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ( “[T]he sweeping clause, as it has been affectedly called, authori[z]es the national legislature to pass all necessary and proper laws.” ); see generally John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045, 1059 & n.47 (2014) ( “[The Framers] referred to the last clause of Article I, Section 8 as the 'Sweeping Clause.'” ). The terms “Elastic Clause,” “Basket Clause,” and “Coefficient Clause” are also occasionally used to refer to this provision. See Devotion Garner & Cheryl Nyberg, Popular Names of Constitutional Provisions, Univ. of Wash. Sch. of Law, https://lib.law.uw.edu/ref/consticlauses.html#oth (listing these terms as “popular name[s]” for the provision). concludes Article I's list of Congress's enumerated powers with a general statement that Congress's powers include not only those expressly listed, but also the authority to use all means “necessary and proper” for executing those express powers. Under the Necessary and Proper Clause, congressional power encompasses all implied and incidental powers that are “conducive” to the “beneficial exercise” of an enumerated power. Footnote
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 418 (1819). The Clause does not require that legislation be absolutely necessary to the exercise of federal power. Footnote
See id. ( “[T]his limited construction of the word 'necessary' [as meaning indispensably necessary] must be abandoned” ). Rather, so long as Congress's end is within the scope of federal power under the Constitution, the Necessary and Proper Clause authorizes Congress to employ any means that are “appropriate and plainly adapted to the permitted end.” Footnote
United States v. Darby, 312 U.S. 100, 124 (1941).

This section first reviews the history of the Necessary and Proper Clause's inclusion in the Constitution and its role in the ratification debates. Next, the section turns to the early judicial interpretation of the Clause, culminating in the Chief Justice Marshall's landmark 1819 opinion in McCulloch v. Maryland. After briefly reviewing the major nineteenth century Supreme Court decisions on the Necessary and Proper Clause following McCulloch, the section concludes with a review of the modern Supreme Court cases on the scope of Congress's power under the Clause.

CoverIntroductionTable of Contents with Critical Media Literacy ConnectionsUpdates & Latest AdditionsLearning Pathway: Racial Justice and Black Lives MatterLearning Pathway: Influential WomenLearning Pathway: Student RightsLearning Pathway: Elections 2024, 2022, & 2020Learning Pathway: Current Events Learning Pathway: Critical Media LiteracyTeacher-Designed Learning PlansTopic 1. The Philosophical Foundations of the United States Political System1.1. The Government of Ancient Athens1.2. The Government of the Roman Republic1.3. Enlightenment Thinkers and Democratic Government1.4. British Influences on American Government1.5. Native American Influences on U.S. GovernmentTopic 2. The Development of the United States Government2.1. The Revolutionary Era and the Declaration of Independence2.2. The Articles of Confederation2.3. The Constitutional Convention2.4. Debates between Federalists and Anti-Federalists2.5. Articles of the Constitution and the Bill of RightsTopic 3. Institutions of United States Government3.1. Branches of the Government and the Separation of Powers3.2. Checks and Balances Between the Branches of Government3.3. The Roles of the Congress, the President, and the Courts3.4. Elections and Nominations3.5. The Role of Political PartiesTopic 4. The Rights and Responsibilities of Citizens4.1. Becoming a Citizen4.2. Rights and Responsibilities of Citizens and Non-Citizens4.3. Civic, Political, and Private Life4.4. Fundamental Principles and Values of American Political and Civic Life4.5. Voting and Citizen Participation in the Political Process4.6. Election Information4.7. Leadership and the Qualities of Political Leaders4.8. Cooperation Between Individuals and Elected Leaders4.9. Public Service as a Career4.10. Liberty in Conflict with Equality or Authority4.11. Political Courage and Those Who Affirmed or Denied Democratic Ideals4.12. The Role of Political Protest4.13. Public and Private Interest Groups, PACs, and Labor UnionsTopic 5. The Constitution, Amendments, and Supreme Court Decisions5.1. The Necessary and Proper Clause5.2. Amendments to the Constitution5.3. Constitutional Issues Related to the Civil War, Federal Power, and Individual Civil Rights5.4. Civil Rights and Equal Protection for Race, Gender, and Disability5.5. Marbury v. Madison and the Principle of Judicial Review5.6. Significant Supreme Court DecisionsTopic 6. The Structure of Massachusetts State and Local Government6.1. Functions of State and National Government6.2. United States and Massachusetts Constitutions6.3. Enumerated and Implied Powers6.4. Core Documents: The Protection of Individual Rights6.5. 10th Amendment to the Constitution6.6. Additional Provisions of the Massachusetts Constitution6.7. Responsibilities of Federal, State and Local Government6.8. Leadership Structure of the Massachusetts Government6.9. Tax-Supported Facilities and Services6.10. Components of Local GovernmentTopic 7. Freedom of the Press and News/Media Literacy7.1. Freedom of the Press7.2. Competing Information in a Free Press7.3. Writing the News: Different Formats and Their Functions7.4. Digital News and Social Media7.5. Evaluating Print and Online Media7.6. Analyzing Editorials, Editorial Cartoons, or Op-Ed CommentariesGlossaryIndex of Terms

5.1

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

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What is the purpose of the Necessary and Proper Clause also known as the Elastic Clause Why is the Elastic Clause still important today?

What is the purpose of Necessary and Proper Clause?

Is the Necessary and Proper Clause also called the Elastic Clause?