Article I, Section 8, Clause 18 of the Constitution gives Congress the power…” to make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers”. This clause is usually referred to as the “elastic clause” and is the source of the doctrine of “implied powers”. It has been a cause of controversy from the very founding of the republic.
An implied power is one that is not specifically granted by the Constitution, but is implied by those that are. For example, the Constitution does not explicitly grant the power to develop and purchase aircraft, nuclear weapons, etc. for the Armed Forces. That power is “implied” in the power to declare war, maintain an Army and Navy and equip the militias, found in clauses eleven thru sixteen.
The point of contention in this case is over the meaning of the word “necessary”. Alexander Hamilton interpreted the meaning as authorizing any law that would facilitate the execution of an enumerated power. Thomas Jefferson, on the other hand, argued that it meant only those laws that the enumerated power could not be executed without. Legislatures have, throughout our history, taken the more liberal meaning in order to pass any law that they could somehow relate to an enumerated power, even if only tangentially.
The liberal interpretation of the phrase is a slippery slope indeed. As Jefferson observed, “If such a latitude of construction be allowed to this phrase, as to give any non-enumerated power, it will go to every one; for there is no one which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers.”
There is hardly any law or subject that cannot somehow be related to one or more of the enumerated powers. The most common one is the “commerce clause” which we will discuss as our next topic. Our federal highway system is sometimes justified by clause seven giving Congress the power to establish post offices and post roads. President Eisenhower justified the building of our interstate highway system on the need to move troops and weapons around the county quickly in case of invasion by a foreign power.
By the clever manipulation of the implied powers doctrine and the illegitimate use of the “intent phrase”, “to provide for the common defense and general welfare of the United States”, our Constitution has all but been made useless as a means for limiting the size and scope of government. As usual, those who misconstrue the meaning of words in the Constitution ignore the context in which they are used. In this case, the word “proper” adds an additional nuance to the word “necessary”. The thesaurus suggests the word “appropriate” as a synonym for “proper“.
A liberal interpretation of the word “necessary” as meaning laws that are merely convenient or that only facilitate the execution of an enumerated power is neither proper nor appropriate to the purpose of section eight or a republican government’s use of a constitution, which is to limit government powers. The intent of section eight by the Framers is given further weight by the Tenth Amendment. If we accept the popular liberal interpretation, there is no limit to the powers granted to Congress, as Jefferson pointed out. From a practical point of view, in today’s political climate, it is important that we insist on the more restricted view expressed by Jefferson, from our elected officials
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Does the ‘necessary & proper’ clause’ allow Congress to make any laws which the people in Congress think are ‘necessary & proper’? NO, IT DOES NOT! Alexander Hamilton says the clause merely gives to Congress a right to pass all laws necessary & proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power (Federalist No. 33, 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (Federalist No. 33, 2nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy. (Federalist No. 33, 4th para). James Madison agrees with Hamilton’s explanation. (Federalist No. 44, 10th-17th paras). In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison are clear that no additional substantive powers are granted by this clause.
Hamilton explained the clause well in the Federalist Papers when he was attempting to “sell” the Constitution to the people of New York. However, once he became Secretary of Treasury under George Washington, he used this clause to argue against Jefferson’s objection to establishing a national bank on the grounds that it was unconstitutional. Hamilton argued that it was “necessary” in order to implement the power to tax given in Article I, Section 8, Clause 1.
Unfortunately, the framers overlooked the need for a federal constitutional police force in some form which presumably would be solely charged with putting forth a case to the Supreme Court when presented by a compelling complaint from the people claiming that Congress has overstepped its constitutional authorities and powers. As a result, what has emerged is the Congressional abuse of the “elastic clause” and the “commerce clause”. Such has given rise, at considerable expense to the people, the unconstitutional creation of a number of purely political entities such as the Departments of Education, Energy, Agriculture, Labor, Human Services, Housing and Transportation, along with the many Czars presiding over such additional unconstitutional Federal bureaucracies not even subject to Congressional review, all of which are the antithesis of the limited Federal government embodied in our Republic’s Constitution. It will be hard to remedy these matters.