The Necessary and Proper Clause is arguably the most misunderstood and abused clause in the Constitution.
During the ratification debates, Anti-Federalists, and even one of the primary drafters of the clause, warned that the wording was ambiguous and it would be subject to abuse.
As it turns out, they were correct.
The clause states that Congress has 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.”
It sounds simple enough on the surface until you ask the question: what is “necessary?” And what is “proper?”
Politicians and modern legal experts often refer to the Necessary and Proper Clause as the “elastic clause” or the “sweeping clause” because they imagine that it expands the powers of the federal government beyond those specifically listed throughout the Constitution. You’ll often hear the term “implied powers” in reference to the necessary and proper clause.
It’s important not to overlook some important words in the clause. It delegates power to make laws “necessary and proper for carrying into Execution the foregoing Powers.”
That makes it clear that it is not delegating additional powers at all.
The lawyers who drafted the Necessary and Proper Clause at the Philadelphia Convention took its legal language directly from contemporary agency law and usage dating back to common law regarding principles and agents. This was carried over into modern commercial law, particularly relating to hiring people to act as agents for a business.
The Committee of Detail made up of four prominent founding-era lawyers drafted the Necessary and Proper Clause. A fifth drafter, Nathaniel Gorham of Massachusetts, was a merchant.
- Virginia Gov. Edmund Randolph, who not only took over Thomas Jefferson’s clients in his absence, but also represented George Washington in his business affairs, and became the first Attorney General of the United States.
- John Rutledge, who served as governor of South Carolina, was the primary drafter of the state’s 1776 Constitution, and later was one of the first associate justices of the Supreme Court, as well as the Second Chief Justice.
- Oliver Ellsworth of Connecticut, who later became the 3rd Chief Justice of the United States.
- James Wilson of Pennsylvania, a former student of John Dickinson, and later, one of the first associate justices of the Supreme Court.
John Jay, the first chief justice of the Supreme Court described this “principle and agent” relationship” under the Constitution.
“The Constitution only serves to point out that part of the people’s business, which they think proper by it to refer to the management of the persons therein designated. hose persons are to receive that business to manage, not for themselves and as their own, but as agents and overseers for the people to whom they are constantly responsible, and by whom only they are to be appointed”
Thus, the purpose of the Necessary and Proper Clause was to reinforce the role of Congress as the agent of the people of the several states, allowing it to exercise incidental (“necessary,” as a legal term of art) powers “for carrying into execution their written instructions under the Constitution, subject to prevailing fiduciary norms – “proper.”
During the ratification debates, Federalists repeatedly told the ratifying public that the Necessary and Proper Clause reaffirmed this legal principle, and they generally argued that it added no new power at all. For example, James Wilson insisted the clause was not a grant of “general legislative power.”
“Can the words, the Congress shall have power to make all laws, which shall be necessary and proper to carry into execution the foregoing powers, be capable of giving them general legislative power? I hope that it is not meant to give to Congress merely an illusive show of authority, to deceive themselves or constituents any longer. On the contrary, I trust it is meant that they shall have the power of carrying into effect the laws, which they shall make under the powers vested in them by this Constitution.”
Wilson also noted that the Necessary and Proper Clause “gives no more, or other powers; nor does it in any degree go beyond the particular enumeration.“
And he explained why.
“For when it is said, that Congress shall have power to make all laws which shall be necessary and proper, those words are limited, and defined by the following, “for carrying into execution the fore-going powers.” It is saying no more than that the powers we have already particularly given shall be effectually carried into execution.”
Oliver Ellsworth suggested the clause was merely a rule of construction – a recital – a way to read the document, and a bulwark or protection against those who might misrepresent federal power under the Constitution.
“In all these matters and powers given to Congress, their ordinances must be the supreme law of the land or they are nothing. They must have authority to enact any laws for executing their own powers, or those powers will be evaded by the artful and unjust, and the dishonest trader will defraud the public of its revenue.”
In Federalist 33, Alexander Hamilton made explicit what Ellsworth suggested, and he reaffirmed what Wilson said in Pennsylvania, asserting that the Necessary and Proper Clause gives Congress no new power.
Hamilton argued that if Congress is delegated a power, it must necessarily be able to draft laws that enable it to execute that power.
“They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.
…
What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?”
In Federalist 44, James Madison reiterated these points, and he also noted that “without the SUBSTANCE of this power, the whole Constitution would be a dead letter.“
He described the power under the clause as “indispensably necessary” to carrying out the “EXPRESSLY granted” powers.
Madison further explained the Necessary and Proper Clause during the Virginia Ratifying Convention, arguing that “it gives no supplementary power: It only enables them to execute the delegated powers.“
Madison also reiterated the point that the clause was a rule of construction, a recital:
“It is at most but explanatory: For when any power is given, its delegation necessarily involves authority to make laws to execute it. Were it possible to delineate on paper, all those particular cases and circumstances in which legislation by the General Legislature would be necessary, and leave to the States all the other powers, I imagine no Gentleman would object to it. But this is not within the limits of human capacity.”
George Nicholas agreed with Madison, pointing out that the Necessary and Proper Clause gives no additional power.
“The Constitution had enumerated all the powers which the General Government should have; but did not say how they were to be exercised. It therefore in this clause tells how they shall be exercised … This clause only enables them to carry into execution the powers given to them, but gives them no additional power.”
In North Carolina, one of the Maclaines (possibly Archibald) also told the people that Necessary and Proper “gives no new power.”
“This clause specifies that they shall make laws to carry into execution, all the powers vested by this Constitution, consequently they can make no laws to execute any other power. This clause gives no new power, but declared that those already given are to be executed by proper laws.”
However, Anti-Federalists weren’t persuaded by these arguments. Some disagreed with the purported legal meaning of the clause and others felt it was simply too poorly defined.
They viewed it as a tool that could easily be used by bad actors to expand federal power far beyond the limits of the Constitution. As John Williams noted in a speech at the New York ratifying convention, “It is perhaps utterly impossible fully to define this power.“
Because the Necessary and Proper Clause was seen by opponents as so ambiguous, many Anti-Federalists warned that it would ultimately be up to the government to determine if what the government was doing was “necessary.” That, of course, would lead to nearly unlimited federal power.
Williams summed it up this way.
“Whatever they judge necessary for the proper administration of the powers lodged in the, they may execute without any check or impediment.”
WHAT IS NECESSARY?
As already mentioned, much of the scope of the clause depends on the definition of “necessary.” Different meanings for the word became more prominent in the years after the Constitution was ratified.
1. Necessary means “indispensable”
Thomas Jefferson advocated for this narrow definition, writing, “The Constitution allows only the means which are ‘necessary’ … that is to say, to those means without which the grant of power would be nugatory.”
2. Necessary means “convenient”
It appears that Alexander Hamilton was the first to push for this broad definition of the necessary to justify his 1791 National Bank bill. Later, Chief Justice John Marshall adopted this view, in his opinion in McCulloch v Maryland (1819). In some places, he copied Hamilton almost word for word.
But even earlier, in the 1803 case U.S. v Fisher – Marshall had already taken the view that Congress had almost complete discretion over what was “necessary,” reaffirming warnings from John Williams and other anti-federalists in 1788.
All this, even though, as Robert Natelson pointed out in his paper on the origins of the Necessary and Proper Clause, the leading dictionary at the time of ratification had multiple entries for “necessary,” but not a single one came close to “convenient.”
3. Somewhere in the middle
There was also a middle road, primarily advanced by Edmund Randolph. During the ratification debates in Virginia, he argued that both extremes were wrong.
“I thought the friends of the Constitution were mistaken, when they supposed the powers granted by the last clause of the eighth section, to be merely incidental; and that its enemies were equally mistaken when they put such an extravagant construction upon it.”
While Madison, Jefferson, and others argued the clause was merely declaratory and added no new powers, Randolph thought it allowed for more latitude. But he didn’t go as far as Hamilton’s “convenient” argument.
In his view, the exercise of “incidental” powers was broader than merely those which are absolutely necessary. He argued that “to be necessary is to be incidental, or in other words may be denominated the natural means of executing a power.”
But Randolph also warned a broad construction of incidental powers comes with great risk.
“However, let it be propounded as an eternal question to those, who build new powers on this clause, whether the latitude of construction which they arrogate, will not terminate in an unlimitted power in Congress?”
WHAT IS PROPER?
While there was considerable debate over how the Necessary and Proper clause would function in practice along with the definition of the word “necessary,” there wasn’t much discussion about what qualified as “proper.”
It was generally understood that a “proper” law respected the legal boundaries of the Constitution. In effect, it reaffirms a point that should be obvious – Congress is not authorized to pass unconstitutional laws.
As legal scholar Randy Barnett noted, “For a law to be ‘proper’ it must not only be necessary, it must also be within the jurisdiction of Congress. This propriety of jurisdiction is determined in at least three ways: (1) according to principles of separation of powers, (2) according to principles of federalism, and (3) according to the background rights retained by the people.”
This reflects John Locke’s view that government serves as an agent of the people. In his Second Treatise on Government, he argued that only laws made within the bounds of the power the people delegated to the government can be legitimate or proper.
“The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed.”
He went on to write that government has “no manner of authority … beyond what is by positive grant and commission delegated to them.”
James Wilson reiterated this view in his highly influential State House Yard Speech:
“Congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union.”
In other words, government actions that go beyond the powers delegated are not “proper.”
A CHECK ON GOVERNMENT POWER
St. George Tucker wrote the first systematic commentary on the U.S. Constitution and was one of the most influential legal thinkers in the early days of the Republic. In his overview of the Necessary and Proper clause, Tucker wrote, “The plain import of this clause is, that Congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers.” [Emphasis added]
His view was similar to Madison, Jefferson, and others who called for a limited view of the clause.
“It neither enlarges any power specifically granted, nor is it a grant of new powers to congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted, are included in the grant.”
Tucker insisted this construction of the words necessary and proper is “consonant with that which prevailed during the discussions and ratification of the constitution.”
But Tucker went a step further and argued that the Necessary and Proper Clause actually serves as a limiting clause and that this construction was the only way to preserve the intended structure of the constitutional system with the federal government only possessing delegated powers.
“[It} is absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers, only; not of the general and indefinite powers vested in ordinary governments.”
Tucker argued that the Necessary and Proper Clause was never intended to operate as a “sweeping clause.” It was designed to check federal power and keep it within a limited scope.
“Under this construction of the clause in question, it is calculated to operate as a powerful and immediate check upon the proceedings of the federal legislature, itself.” [Emphasis added]
In Tucker’s view, it logically followed that the Necessary and Proper clause, “cannot be construed to enlarge any power before specifically granted; nor to grant any new power, not before specifically enumerated; or granted in some other part of the Constitution.”
“On the contrary, it seems calculated to restrain the federal government from the exercise of any power, not necessarily an appendage to, and consequence of some power particularly enumerated.”
As Tucker pointed out, whether they simply ignore the delegated powers or justify expanding power by manipulating the Necessary and Proper Clause, the end result is the same.
“If this construction be rejected, it must be wholly immaterial, whether unlimited powers be exercised under the name of unlimited powers, or be exercised under the name of unlimited means of carrying into execution limited powers.”
THE SWEEPING CLAUSE
Ultimately, the expansive Hamilton/Marshall definition of the word necessary prevailed. As a result, the Necessary and Proper Clause effectively evolved into the “sweeping clause” that we live under today.
The fundamental problem with this approach is it allows government officials to effectively determine the extent of their own power.
As we can see today, giving discretion to Congress to determine if something is “necessary” (especially if necessary means “convenient”) and “proper” is a surefire way to guarantee unlimited power, because it’s no longer “incidental” power, but implied.
Thomas Jefferson warned about how that would play out, and he nailed it.
“If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power”
Patrick Henry put it this way during a speech at the Virginia Ratifying Convention.
“If they encroach on these rights, and you give your implication for a plea, you are cast; for they will be justified by the last part of it, which gives them full power, “To make all laws which shall be necessary and proper to carry their powers into execution.” Implication is dangerous, because it is unbounded: If it be admitted at all, and no limits be prescribed, it admits of the utmost extension.”
The Anti-Federalist Federal Farmer also warned that the Necessary and Proper Clause was poorly defined and would lead to people reading it to expand their own power.
“Men who govern, will, in doubtful cases, construe laws and constitutions most favourably for increasing their own powers.”
Even Edmund Randolph with his more expansive understanding of “necessary” warned that that the clause was ambiguous, and therefore, ripe for abuse of power during the Virginia Ratifying Convention.
“My objection is, that the clause is ambiguous, and that that ambiguity may injure the States. My fear is, that it will by gradual accessions gather to a dangerous length. This is my apprehension, and I disdain to disown it.”
When carefully examining the explanations of the clause during ratification, along with the legal framework out of which the clause evolved, it’s clear that Necessary and Proper doesn’t add anything to the powers already delegated to Congress. It does not allow for the creation of new powers. The clause simply reaffirms that the federal government possesses the ability to make laws in order to exercise the expressly delegated powers already enumerated in the Constitution.
But, because it’s ambiguous – as Anti-Federalists, and even one of the primary drafters of the clause warned – it’s ripe for abuse and an expansion of federal power.
On this, it appears they were absolutely right.
