Often called the “elastic clause,” the necessary and proper clause simply 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.”

In Federalist 33, Alexander Hamilton asserted that the necessary and proper clause (along with the supremacy clause) merely stated a truism and gave no additional power to the federal government.

It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. 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.

Of course, that was before he pulled a classic bait-and-switch after ratification and used it to justify the power to charter a national bank. Thomas Jefferson vehemently opposed Hamilton’s suddenly loose construction.

The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient’ for effecting the enumerated powers. 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, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory.

During the Virginia ratifying convention, George Nicholas testified to the fact that the necessary and proper clause does nothing to expand powers, attempting to soothe the minds of those who feared the federal government would take it that way.

Suppose it had been inserted at the end of every power, that they should have the power to make laws to carry that power into execution; would this have increased their powers? If therefore it could not have increased their powers, if placed at the end of each power, it cannot increase them at the end of all. This clause only enables them to carry into execution the powers given them, but gives them no additional power.

So what exactly does “necessary and proper” mean?

Legal documents delegating power commonly contain a necessary and proper clause, and it has a precise, specific definition that was well-understood in the founding era. Basically, it allows an agent to exercise powers not explicitly spelled out in the legal document, but necessary to exercise the specific authority given to him.

For example, let’s say I write out a contract granting you the authority to run my grocery store. I don’t need to specify that you have the power to pay a guy to clean the floors, or hire a mechanic to fix a freezer when it goes down. Those powers are necessary and proper to running a grocery store. But necessary and proper powers don’t give you the right to give away all of the food items in my store and turn it into a pornography shop.

According to constitutional scholar Rob Natelson, as the framers understood the concept, any necessary and proper power remains constrained by specific criteria. The power must be:

Get the Book Today

Get the Book Today

  1. Necessary to carry out the original purpose – like purchasing corn from a farmer to sell in the grocery store.
  2. A customary way of carrying out the original purpose. The guy running my grocery couldn’t get rid of all the food and sell porno because that would clearly not constitute a customary way of running a grocery store
  3. An incidental power can never rise to a level greater than the original power delegated. My grocery store manager would have the authority to pay a mechanic for fixing the broken freezer. But he wouldn’t have the power to sell the building and invest the money in the stock market for me.

The necessary and proper clause does not add anything to the authority already delegated to Congress. It does not allow for the creation of new powers. The clause simply reaffirms that the federal government possesses the flexibility to exercise the enumerated powers already delegated.

Nothing more.

Nothing less.


Concordia res parvae crescunt


Small things grow great by concord...

Tenth Amendment Center


"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 to the people."


FOLLOW US

Get in Touch

1 + 5 =


MAIL:
PO BOX 13458
Los Angeles, CA 90013


PHONE:
213.935.0553

The 10th Amendment

“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 to the people.”

LEARN MORE

01

Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles

02

Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog

03

State of the Nullification Movement

108 pages. History, constitutionality, and application today.

get the report

01

Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty

02

maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens.

maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues – history, and application today

TENTHER ESSENTIALS

Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!

JOIN TAC

01

The 10th Amendment

History, meaning, and purpose – the “Foundation of the Constitution.”

10th Amendment

03

Nullification

Get an overview of the principles, background, and application in history – and today.

nullification