“To make all laws which shall be necessary and proper for carrying into execution the foregoing power, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” Article 1, Section 8, Clause 18, US Constitution
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The Necessary and Proper Clause is sometimes known as the Elastic Clause because it expands the enumerated powers of Congress. The Framers included the Necessary and Proper Clause for two reasons:
1. To facilitate the organization of government. An example would be the power Congress has to organize the judicial branch (See Article 1, Section 8, Clause 9). Without this clause, the laws organizing other branches would have gone against the principles of enumerated powers and separation of powers.
2. To help make the enumerated powers of Congress effective. (To give the enumerated powers some “teeth”). It supports the laws needed to carry out the powers listed in Section 8.
However, this clause does not give Congress the implied power to make laws for any purpose whatsoever; only for the purpose of executing its enumerated powers and “all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” {Meaning the President and the Federal courts} Because of the “all other powers” phrase, the Congress has the power to share the responsibilities of the other departments. Examples would be when Congress passes laws to initiate treaty obligations and to organize the Federal court system.
The Necessary and Proper clause gives flexibility to allow the powers of Congress to be adjusted to changing needs of the nation. Congress can use various means to carry out its delegated powers. As an example, the Congress has the power to regulate foreign and interstate commerce. This means that Congress can improve rivers, harbors, rail systems, and airports to help with commerce. The clause allows for any means to be used unless the Supreme Court rules that the law created is not “necessary and proper” to the delegated power.
The powers of Congress can be classified as:
1. Enumerated or delegated, as in Article 1, Section 8
2. Implied as seen in Article 1, Section 8
3. Prohibited, as in Article 1, Section 9
4. Inherited (from British Parliament and early State constitutions), as seen in Article 1, Section 5
The powers can be further divided into:
a. Exclusive – as in the power of Congress to declare war
b. Concurrent – a power that Congress shares with the President
Other powers are called reserved or residual powers. There are the powers that the people or the states did not delegate to Congress or government. These reserved powers are protected by the 10th Amendment, which states,” The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states, respectively, or the people.”
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Over the years, the concept of States’ Rights has weakened and power formerly controlled by the States has been shifted to the central government. (Per Liberty, Order, and Justice, page 306)
We the people give Congress the power to make laws necessary and proper for the government to function as written in the Constitution.
With the Necessary and Proper Clause, we the people get assurance that the government can operate day-to-day, as we have designated.
References:
http://www.heritage.org/constitution/#!/articles/1/essays/59/necessary-and-proper-clause
Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950
McClellan, James. Liberty, Order, and Justice. Indianapolis, Liberty Fund, Inc., 2000
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