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At Pennsylvania’s ratification convention, James Wilson, the author of the clause, explained that the words “necessary and proper” are “limited, and defined by the following, ‘for carrying into execution the foregoing powers.’ It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” It authorizes what is “necessary to render effectual the particular powers that are granted.” Congress thus can make laws about something otherwise outside the enumerated powers, insofar as those laws are “necessary and proper” to effectuate federal policy for something within an enumerated power. Although not independently valid under another enumerated power, such laws are supported by this clause to the extent that they constitute a means by which federal policy can be executed under an enumerated power.
On this principle, Hamilton, as Treasury Secretary, urged Congress in 1790 to establish a private banking corporation to facilitate tax collection and support of the army, to promote commerce among the states, and to answer the government’s own borrowing needs. The Supreme Court confirmed the indispensable means-to-end nature of the necessary and proper power in McCulloch v. Maryland (1819). Writing for the Court, Chief Justice John Marshall upheld the Second Bank of the United States, utilizing the very rationale that Secretary Hamilton, and Wilson before him, had employed. Marshall rejected Thomas Jefferson’s view that the clause limits Congress to “those means without which the grant of power would be nugatory.” That would have precluded Congress from deliberating alternatives, and the Court read the clause instead as vesting “discretion, with respect to the means by which the powers it confers are to be carried into execution.” McCulloch countenanced “any means calculated to produce the end,” giving Congress “the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.” According to McCulloch, unless otherwise inconsistent “with the letter and spirit of the constitution,” any law that is “appropriate,” “plainly adapted to that end,” and “really calculated to effect any of the objects entrusted to the federal government” is valid under the Necessary and Proper Clause. For the judiciary “to inquire into the degree of its necessity,” Marshall said, “would be...to tread on legislative ground.”
So long as a law promotes an end within the scope of some enumerated power, extraneous objectives do not render it unconstitutional. Indeed, one means might be preferred over others precisely because it advances another objective as well. For example, besides helping Congress effectuate various enumerated powers, a bank could make private loans to augment business capital or to satisfy consumer wants; while these extraneous ends could provide no independent constitutional justification, Hamilton urged them as principal reasons why Congress should incorporate a bank. Record-keeping and reporting requirements regarding drug transactions, if apt as means to enforce federal taxes on those transactions, are no less valid because crafted for police ends that are not within any enumerated power. Extraneous objectives are constitutionally immaterial; but to invoke the Necessary and Proper Clause, a sufficient link to some enumerated-power end is constitutionally indispensable.
The Necessary and Proper Clause allows Congress to decide whether, when, and how to legislate “for carrying into Execution” the powers of another branch; but it respects and even reinforces the principle of separation of powers. Unlike Randolph’s authorization to “organize the government”—which the Committee of Detail had replaced with Wilson’s more exacting phrase—“laws...for carrying into Execution” the powers (and thus discretion) reposed in another branch can only mean laws to help effectuate the discretion of that other branch. It gives Congress no power to instruct or impede another branch in the performance of that branch’s constitutional role. Of course, when the clause is invoked to effectuate ends within Congress’s own powers, it compounds Congress’s discretion: not only the selection of means, but also the selection of policy ends, rests in Congress’s own discretion.
McCulloch remains the classic elucidation of this clause, but it has been elaborated in many other cases, such as in the proceedings concerning the Legal Tender Act of 1862. Congress, in an effort to stabilize commerce and support military efforts during the Civil War, determined that new paper currency must be accepted at face value as legal tender. The Supreme Court, in the Legal Tender Cases (1871), affirmed Congress’s discretion to choose among means thought conducive to enumerated-power ends. The Court upheld Congress’s choice, even though better means might have been chosen, and though the legal tender clause proved to be of little help: “The degree of the necessity for any Congressional enactment, or the relative degree of its appropriateness, if it has any appropriateness, is for consideration in Congress, not here,” said the Court.
The basic operation of the Necessary and Proper Clause is the same in every context. For example, federal tax lien and collection laws; record-keeping, reporting, and filing requirements; and civil and criminal penalties for non-payment are not themselves exertions of Congress’s power to tax, but are laws “necessary and proper for carrying into Execution” the federal taxing power. That is why “provisions extraneous to any tax need” are not rendered valid simply by inclusion in a tax statute. United States v. Kahriger (1953); see also Linder v. United States (1925). Similarly, with regard to federal condemnation of property, “the really important question to be determined” is whether “it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the constitution.” United States v. Gettysburg Electric Railway Co. (1896). “Public use” alone is not sufficient, but if the proposed use is the kind of public use embraced by one of the enumerated federal powers, “the provision comes within the rule laid down by Chief Justice Marshall, in McCulloch v. Maryland....”
This clause’s enhancement of Congress’s power over commerce among the states had been judicially recognized decades before Congress began to exercise that power extensively. See Gilman v. Philadelphia (1866). Its means-to-end logic underlay the Supreme Court’s approval of antitrust prosecutions for local monopolies when the government could prove a purpose to restrain interstate trade, Addyston Pipe & Steel v. United States (1899), but not when the government omitted to prove such a purpose, United States v. E.C. Knight Co. (1895). The same rationale sustained an amendment to the Safety Appliance Act, which prescribed safety equipment for railcars used only within a state, because the amendment increased safety for interstate cars and cargos on the same rails. Southern Railway v. United States (1911). Likewise, the Interstate Commerce Commission could authorize carriers to disregard state limits on rates for trips within a state, as a means to eliminate price discrimination against interstate commerce. Shreveport Rate Case (1914). Upholding the wage and hour provisions of the Fair
Labor Standards Act on this ground in United States
v. Darby (1941), the Court cited not only those older cases but also NLRB v. Jones & Laughlin Steel Corp. (1937) as illustrating the rationale of the Necessary and Proper Clause.
Often the Supreme Court has not articulated this Necessary and Proper Clause basis of its so-called affecting commerce doctrine. This has led to one of the most confused areas of all constitutional law. Justice Sandra Day O’Connor, however, did emphasize it: first in her dissent in Garcia v. San Antonio Metropolitan Transit Authority (1985), and then for the majority in New York v. United States (1989). The rule against federal “commandeering” of state officials, applied both in that New York case and in Printz v. United States (1997), was attributed to the word “proper” in the Necessary and Proper Clause, as interpreted in McCulloch to mean consistency with “the spirit of the constitution.”
On this principle, Hamilton, as Treasury Secretary, urged Congress in 1790 to establish a private banking corporation to facilitate tax collection and support of the army, to promote commerce among the states, and to answer the government’s own borrowing needs. The Supreme Court confirmed the indispensable means-to-end nature of the necessary and proper power in McCulloch v. Maryland (1819). Writing for the Court, Chief Justice John Marshall upheld the Second Bank of the United States, utilizing the very rationale that Secretary Hamilton, and Wilson before him, had employed. Marshall rejected Thomas Jefferson’s view that the clause limits Congress to “those means without which the grant of power would be nugatory.” That would have precluded Congress from deliberating alternatives, and the Court read the clause instead as vesting “discretion, with respect to the means by which the powers it confers are to be carried into execution.” McCulloch countenanced “any means calculated to produce the end,” giving Congress “the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.” According to McCulloch, unless otherwise inconsistent “with the letter and spirit of the constitution,” any law that is “appropriate,” “plainly adapted to that end,” and “really calculated to effect any of the objects entrusted to the federal government” is valid under the Necessary and Proper Clause. For the judiciary “to inquire into the degree of its necessity,” Marshall said, “would be...to tread on legislative ground.”
So long as a law promotes an end within the scope of some enumerated power, extraneous objectives do not render it unconstitutional. Indeed, one means might be preferred over others precisely because it advances another objective as well. For example, besides helping Congress effectuate various enumerated powers, a bank could make private loans to augment business capital or to satisfy consumer wants; while these extraneous ends could provide no independent constitutional justification, Hamilton urged them as principal reasons why Congress should incorporate a bank. Record-keeping and reporting requirements regarding drug transactions, if apt as means to enforce federal taxes on those transactions, are no less valid because crafted for police ends that are not within any enumerated power. Extraneous objectives are constitutionally immaterial; but to invoke the Necessary and Proper Clause, a sufficient link to some enumerated-power end is constitutionally indispensable.
The Necessary and Proper Clause allows Congress to decide whether, when, and how to legislate “for carrying into Execution” the powers of another branch; but it respects and even reinforces the principle of separation of powers. Unlike Randolph’s authorization to “organize the government”—which the Committee of Detail had replaced with Wilson’s more exacting phrase—“laws...for carrying into Execution” the powers (and thus discretion) reposed in another branch can only mean laws to help effectuate the discretion of that other branch. It gives Congress no power to instruct or impede another branch in the performance of that branch’s constitutional role. Of course, when the clause is invoked to effectuate ends within Congress’s own powers, it compounds Congress’s discretion: not only the selection of means, but also the selection of policy ends, rests in Congress’s own discretion.
McCulloch remains the classic elucidation of this clause, but it has been elaborated in many other cases, such as in the proceedings concerning the Legal Tender Act of 1862. Congress, in an effort to stabilize commerce and support military efforts during the Civil War, determined that new paper currency must be accepted at face value as legal tender. The Supreme Court, in the Legal Tender Cases (1871), affirmed Congress’s discretion to choose among means thought conducive to enumerated-power ends. The Court upheld Congress’s choice, even though better means might have been chosen, and though the legal tender clause proved to be of little help: “The degree of the necessity for any Congressional enactment, or the relative degree of its appropriateness, if it has any appropriateness, is for consideration in Congress, not here,” said the Court.
The basic operation of the Necessary and Proper Clause is the same in every context. For example, federal tax lien and collection laws; record-keeping, reporting, and filing requirements; and civil and criminal penalties for non-payment are not themselves exertions of Congress’s power to tax, but are laws “necessary and proper for carrying into Execution” the federal taxing power. That is why “provisions extraneous to any tax need” are not rendered valid simply by inclusion in a tax statute. United States v. Kahriger (1953); see also Linder v. United States (1925). Similarly, with regard to federal condemnation of property, “the really important question to be determined” is whether “it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the constitution.” United States v. Gettysburg Electric Railway Co. (1896). “Public use” alone is not sufficient, but if the proposed use is the kind of public use embraced by one of the enumerated federal powers, “the provision comes within the rule laid down by Chief Justice Marshall, in McCulloch v. Maryland....”
This clause’s enhancement of Congress’s power over commerce among the states had been judicially recognized decades before Congress began to exercise that power extensively. See Gilman v. Philadelphia (1866). Its means-to-end logic underlay the Supreme Court’s approval of antitrust prosecutions for local monopolies when the government could prove a purpose to restrain interstate trade, Addyston Pipe & Steel v. United States (1899), but not when the government omitted to prove such a purpose, United States v. E.C. Knight Co. (1895). The same rationale sustained an amendment to the Safety Appliance Act, which prescribed safety equipment for railcars used only within a state, because the amendment increased safety for interstate cars and cargos on the same rails. Southern Railway v. United States (1911). Likewise, the Interstate Commerce Commission could authorize carriers to disregard state limits on rates for trips within a state, as a means to eliminate price discrimination against interstate commerce. Shreveport Rate Case (1914). Upholding the wage and hour provisions of the Fair
Labor Standards Act on this ground in United States
v. Darby (1941), the Court cited not only those older cases but also NLRB v. Jones & Laughlin Steel Corp. (1937) as illustrating the rationale of the Necessary and Proper Clause.
Often the Supreme Court has not articulated this Necessary and Proper Clause basis of its so-called affecting commerce doctrine. This has led to one of the most confused areas of all constitutional law. Justice Sandra Day O’Connor, however, did emphasize it: first in her dissent in Garcia v. San Antonio Metropolitan Transit Authority (1985), and then for the majority in New York v. United States (1989). The rule against federal “commandeering” of state officials, applied both in that New York case and in Printz v. United States (1997), was attributed to the word “proper” in the Necessary and Proper Clause, as interpreted in McCulloch to mean consistency with “the spirit of the constitution.”
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