Necessary and Proper Clause
[The Congress shall have 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 any Department or Officer thereof
Article I, Section 8, Clause 18 – the “necessary and proper” clause – is often called the “elastic clause” or the “sweeping clause” because many people believe it gives the federal government the power to do just about anything. However, the necessary and proper clause doesn’t actually delegate any power at all. It’s what is known as a “recital.”
As constitutional scholar Rob Natelson put it, “A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document. Another example of a recital in the Constitution is the Preamble.”
During the Virginia ratifying convention, George Nicholas assured the delegates that the necessary and proper clause only enabled Congress to “carry into execution” the powers delegated to it in the first place.
“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.”
Alexander Hamilton made a similar assertion in Federalist #33, writing that the necessary and proper clause, along with the supremacy clause, merely stated a truism and delegated 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.”
To properly understand the scope of the necessary and proper clause, we need to know something about the construction of legal documents in the 18th century. Most contracts delegating power included such a phrase. It established that the agent (the party exercising the delegated powers) had the authority to take action “incidental” to the specific powers listed. Natelson explained that during the founding era, by definition, a so-called incidental power had to meet certain requirements.
- It was subsidiary to—less important than—a listed or “principal” power. Founding-Era lawyers said an incidental power had to be less “worthy” than the principal.
- It was either a customary way of exercising the listed power or reasonably necessary to its exercise. Founding-Era lawyers summarized “reasonably necessity” by saying that an incidental power had to be one that, if absent, would subject exercise of the principal power to “great prejudice.”
In a nutshell, the necessary and proper clause doesn’t 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 some flexibility to exercise the enumerated powers already delegated.