Article 1 §8.18 of the Constitution is the Necessary and Proper Clause. It’s a really big deal, and it’s one of my favorite clauses. Why? Because it wraps up the interminable Section 8 of Article 1. Also, it’s really fun. It could have its own blog instead of just one post.

Democracy. It seems boring until you look at it closely. So I’m studying the Constitution, one clause at a time.

I’m up to Article 1 §8.18.

Article 1 §8.18

The Necessary and Proper Clause grants Congress 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.

Legalese

It’s an early exercise in Legalese. The Necessary and Proper Clause is basically a catch-all clause that says, “aaand Congress can do whatever it needs to do to accomplish all of the above, even though we didn’t think of it when we wrote this.”

You could write a whole book on this clause. So it’s hard to know how much to dig into it for a blog post. Other names for the clause include the “coefficient” or “elastic” clause, because it basically allows Congress to do anything it deems necessary. Of course the courts have to agree that an act of Congress is “necessary,” but historically, it’s been something of a free pass. Here’s what Justice Marshall said in McCulloch v. Maryland:

Let the end be legitimate, 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.

Scope

Practically every power of the national government has been expanded by the Necessary and Proper Clause. Congress has used the clause to take power from other agencies and to delegate power to them. According to the Annotated Constitution, some categories of action are more significant than others.  But even the important categories are numerous.

Definition of Punishment and Crimes

The only crimes Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States. But Congress’ power to define and punish crimes is universally conceded as necessary and proper.

Chartering Banks and Corporations

McCulloch established that Congress may incorporate banks and may confer upon them private powers, which, have no relation to the functions of the Federal Government. Those non-governmental functions may be necessary for the banks to remain competitive, and the banks are necessary for the government, therefore…. Necessary and proper. Congress can also charter corporations in the course of promoting interstate commerce (per Luxton v. North River Bridge Co.)

Regulating Currency

Necessary and Proper has been used to give Congress virtually complete control over money and currency in the fulfillment of those financial powers expressly granted by Article 1 §8.1 and Article 1 §8.2.

Judicial Proceedings

Rhode Island v. Massachusetts established that because the Constitution “delineated only the great outlines of the judicial power… leaving the details to Congress… distribution and appropriate exercise of the judicial power must…be made by laws passed by Congress”.  Yeah. I bet that one is a whole chapter in the book on this clause.

There’s so much more, but I’m afraid that if I even open the door I’ll end up writing a book myself. For now, suffice to say this clause is the governmental version of “no tag-backs.”