When was the necessary and proper clause used

Create a personalised ads profile. Select personalised ads. Apply market research to generate audience insights. Measure content performance. Develop and improve products. List of Partners vendors. Share Flipboard Email. Issues The U. Government U. Legal System U. Foreign Policy U. Liberal Politics U. Martin Kelly. History Expert. Martin Kelly, M. Updated August 14, Constitution provides Congress the power to fulfill its legal powers.

Also known as the "elastic clause," it was written into the Constitution in The first Supreme Court case against the clause was in when Maryland objected to Alexander Hamilton's formation of a National Bank. The Necessary and Proper clause has been used in cases about many things, including challenges about Obamacare, legalizing marijuana, and collective bargaining. Featured Video. View Article Sources. Baude, William.

The University of Chicago Law Review National Constitution Center. Cite this Article Format. Kelly, Martin. What Is Originalism? Definition and Examples. Types of Federalism: Definition and Examples. Constitution: Article I, Section 8.

What Are Inherent Powers? The 10th Amendment: Text, Origins, and Meaning. Current Justices of the U. United States ex rel. Singleton, U. Although the Necessary and Proper Clause is therefore implicated in many cases examining the extent of Congress's power under, for example, the Commerce Clause, those decisions are primarily addressed elsewhere in the Constitution Annotated, under the particular enumerated federal power at issue.

In a few cases, however, the Supreme Court has analyzed Congress's power under the Necessary and Proper Clause separately from any specific enumerated power. Typically, these cases involve either multiple enumerated powers, 14 Footnote See, e. Greenman, U. Because the extent of the Necessary and Proper Clause defines the outer reaches of Congress's Article I legislative powers, these cases, in effect, delineate the boundary between the authority of the federal government and those areas reserved to the states.

This section first reviews the history of the Necessary and Proper Clause's inclusion in the Constitution and its role in the ratification debates. Next, the section turns to the early judicial interpretation of the Clause, culminating in the Chief Justice Marshall's landmark opinion in McCulloch v. To exercise exclusive Legislation in all Cases whatsoever, over such District not exceeding ten Miles square as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;-And.

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. David W. Summer Institute on Law and Policy. The Constitution enumerates a great many powers of Congress, ranging from seemingly major powers, such as the powers to regulate interstate and foreign commerce, to seemingly more minor powers, such as the power to establish post offices and post roads.

But there are many powers that most people, today or in when the Constitution was ratified , would expect Congress to exercise that are not part of those enumerations.

The Constitution assumes that there will be federal departments, offices, and officers, but no clause expressly gives Congress power to create them.

Congress is given specific power to punish counterfeiting and piracy, but there is no explicit general authorization to provide criminal—or civil — penalties for violating federal law.

Virtually all of the laws establishing the machinery of government, as well as substantive laws ranging from antidiscrimination laws to labor laws, are enacted under the authority of the Necessary and Proper Clause. This Clause just might be the single most important provision in the Constitution. At first glance and keep in mind that first glances are not always last glances , close analysis of the words of the Necessary and Proper Clause suggests three criteria for a federal law to be within its scope: Laws enacted pursuant to the Clause must be 1 necessary, 2 proper, and 3 for carrying into execution some other federal power.

In McCulloch v. In NFIB v. The subject is likely to be a point of contention in the future. For a long time, the standard assumption has been that laws can carry federal powers into execution by making other laws grounded in those powers more effective.

For example, the Court assumed in Missouri v. In recent years, however, three Justices have followed the lead of certain legal scholars by arguing that carrying the treaty power into execution means providing funds for ambassadors, pens and ink, and travel to foreign nations—in other words, it means making it possible to negotiate, draft, and ratify a treaty rather than to make the treaty more effective once it is negotiated, drafted, and ratified.

Again, this subject is likely to be a point of contention in the future. All of the foregoing, however, assumes that the right way to interpret the Necessary and Proper Clause is to pick apart its individual words and give each key term an independent meaning.

That is not the only way to interpret the clause. Instead, one might look at the clause as a single, undifferentiated provision and try to discern the range of laws that the Clause, viewed holistically and purposively, tries to authorize. If the Necessary and Proper Clause has a relatively broad scope, as the second vision and two centuries of case law has largely maintained, it provides constitutional authorization for much of the existing federal machinery.

If it has a narrower scope, as the first vision and a small but vocal group of Justices and scholars maintains, a great many federal laws that have been taken for granted for a long time might be called into question. The correct interpretation of the Necessary and Proper Clause might — just might — be the single most important question of American constitutional law. The Necessary and Proper Clause would have been familiar to Founding-era people from their everyday lives.

Then, as today, people often designated agents to act on their behalves in various circumstances, ranging from selling goods overseas to managing farms to serving as guardians for minor children. The legal documents creating those agency relationships would expressly identify the main, or principal , powers to be exercised by the agents. Questions would naturally arise about whether the agents could exercise implied, or incidental , powers in carrying out their tasks. For example, could agents selling goods overseas agree to a sale on credit or could they only accept cash?

Could someone charged with managing a farm lease it to a third party or even sell the farm outright if an attractive offer came along?