NECESSARY AND PROPER CLAUSE
Clause 18. 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 the Constitution in the Government of the United States,
or in any Department or Officer thereof.
NECESSARY AND PROPER CLAUSE
Scope of Incidental Powers
The Necessary and Proper Clause, sometimes called the “coefficient” or “elastic”
clause, is an enlargement, not a constriction, of the powers expressly granted to
Congress. Chief Justice Marshall’s classic opinion in McCulloch v. Maryland45 set
the standard in words that reverberate to this day. “Let the end be legitimate,” he
wrote, “let it be within the scope of the Constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited, but
consistent with the letter and spirit of the Constitution, are constitutional.”1730
Moreover, the provision gives Congress a share in the responsibilities lodged in
other departments, by virtue of its right to enact legislation necessary to carry into
execution all powers vested in the National Government. Conversely, where
necessary for the efficient execution of its own powers, Congress may delegate
some measure of legislative power to other departments.1731
45
17 U.S. (4 Wheat.) 316 (1819).
1730
17 U.S. at 420. This decision had been clearly foreshadowed fourteen years
earlier by Marshall’s opinion in United States v. Fisher, 6 U.S. (2 Cr.) 358, 396
(1805). Upholding an act which gave priority to claims of the United States
against the estate of a bankrupt, he wrote: “The government is to pay the debt of
the Union, and must be authorized to use the means which appear to itself most
eligible to effect that object. It has, consequently, a right to make remittance, by
bills or otherwise, and to take those precautions which will render the transaction
safe.”
1731
See “03#01">Delegation of Legislative Power,” supra.
Operation of Clause
Practically every power of the National Government has been expanded in some
degree by the coefficient clause. Under its authority Congress has adopted
measures requisite to discharge the treaty obligations of the nation;1732 it has
organized the federal judicial system and has enacted a large body of law
defining and punishing crimes. Effective control of the national economy has
been made possible by the authority to regulate the internal commerce of a State
to the extent necessary to protect and promote interstate commerce. 1733 The
right of Congress to utilize all known and appropriate means for collecting the
revenue, including the distraint of property for federal taxes,1734 and its power to
acquire property needed for the operation of the Government by the exercise of
the power of eminent domain,1735 have greatly extended the range of national
power. But the widest application of the necessary and proper clause has
occurred in the field of monetary and fiscal controls. Inasmuch as the various
specific powers granted by Article I, § 8, do not add up to a general legislative
power over such matters, the Court has relied heavily upon this clause in
sustaining the comprehensive control which Congress has asserted over this
subject.1736
1732
Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252
U.S. 416 (1920).
See discussion of “20#07">Necessary and Proper Clause” under the
commerce power, supra.
1733
Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.)
272, 281 (1856). Congress may also legislate to protect its spending power.
Sabri v. United States, 541 U.S. 600 (2004) (upholding imposition of criminal
penalties for bribery of state and local officials administering programs receiving
federal funds).
1734
1735
Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Fox, 94 U.S.
315, 320 (1877).
1736
See “38#01">Fiscal and Monetary Powers of Congress,” supra.
Definition of Punishment and Crimes
Although the only crimes which Congress is expressly authorized to punish are
piracies, felonies on the high seas, offenses against the law of nations, treason
and counterfeiting of the securities and current coin of the United States, its
power to create, define,and punish crimes and offenses whenever necessary to
effectuate the objects of the Federal Government is universally conceded. 1737
Illustrative of the offenses which have been punished under this power are the
alteration of registered bonds,1738 the bringing of counterfeit bonds into the
country,1739 conspiracy to injure prisoners in custody of a United States
marshal,1740 impersonation of a federal officer with intent to defraud,1741
conspiracy to injure a citizen in the free exercise or enjoyment of any right or
privilege secured by the Constitution or laws of the United States,1742 the receipt
by Government officials of contributions from Government employees for political
purposes,1743 advocating the overthrow of the Government by force.1744 Part I of
Title 18 of the United States Code comprises more than 500 sections defining
penal offenses against the United States.1745
One of the most expansive interpretations of the Necessary and Proper Clause
arose in the context of the administration of the federal penal system. In United
States v. Comstock,46 the Court evaluated a federal statute which allowed for the
civil commitment of a federal prisoner past the term of his imprisonment if that
prisoner would have serious difficultly in refraining from sexually violent conduct
or child molestation. The statute contained no requirement that the threatened
future conduct would fall under federal jurisdiction, raising the question of what
constitutional basis could be cited for its enforcement. The majority opinion in
Comstock upheld the statute after considering five factors: (1) the historic
breadth of the Necessary and Proper Clause; (2) the history of federal
involvement in this area; (3) the reason for the statute’s enactment; (4) the
statute’s accommodation of state interests; and (5) whether the scope of statute
was too attenuated from Article I powers.47
In evaluating these factors, the Court noted that previous federal involvement in
the area included not only the civil commitment of defendants who were
incompetent to stand trial or who became insane during the course of their
imprisonment, but, starting in 1949, the continued confinement of those adjudged
incompetent or insane past the end of their prison term. In upholding the sex
offender statute, the Court found that protection of the public and the probability
that such prisoners would not be committed by the state represented a “rational
basis” for the passage of such legislation.48 The Court further found that state
interests were protected by the legislation, as the statute provided for transfer of
the committed individuals to state authorities willing to accept them. Finally, the
Court found that the statute was not too attenuated from the Article I powers
underlying the criminal laws which had been the basis for incarceration, as it
related to the responsible administration of the United States prison system.
Chartering of Banks
As an appropriate means for executing “the great powers, to lay and collect
taxes; to borrow money; to regulate commerce; to declare and conduct a war;
and to raise and support armies . . . ,” Congress may incorporate banks and
kindred institutions.1746 Moreover, it may confer upon them private powers, which,
standing alone, have no relation to the functions of the Federal Government, if
those privileges are essential to the effective operation of such corporations. 1747
Where necessary to meet the competition of state banks, Congress may
authorize national banks to perform fiduciary functions, even though, apart from
the competitive situation, federal instrumentalities might not be permitted to
engage in such business.1748 The Court will not undertake to assess the relative
importance of the public and private functions of a financial institution Congress
has seen fit to create. It sustained the act setting up the Federal Farm Loan
Banks to provide funds for mortgage loans on agricultural land against the
contention that the right of the Secretary of the Treasury, which he had not
exercised, to use these banks as depositories of public funds, was merely a
pretext for chartering those banks for private purposes.1749
1737
United States v. Fox, 95 U.S. 670, 672 (1978); United States v. Hall, 98 U.S.
343, 357 (1879); United States v. Worrall, 2 U.S. (2 Dall. ) 384, 394 (1798);
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). That this power has been
freely exercised is attested by the pages of the United States Code devoted to
Title 18, entitled “Criminal Code and Criminal Procedure.” In addition numerous
regulatory measures in other titles prescribe criminal penalties.
1738
Ex parte Carll, 106 U.S. 521 (1883).
1739
United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850).
1740
Logan v. United States, 144 U.S. 263 (1892).
1741
United States v. Barnow, 239 U.S. 74 (1915).
1742
Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Waddell, 112 U.S.
76 (1884); In re Quarles and Butler, 158 U.S. 532, 537 (1895); Motes v. United
States, 178 U.S. 458 (1900); United States v. Mosley, 238 U.S. 383 (1915). See
also Rakes v. United States, 212 U.S. 55 (1909).
1743
Ex parte Curtis, 106 U.S. 371 (1882).
1744
18 U.S.C. § 2385.
1745
See National Commission on Reform of Federal Criminal Laws, Final Report
(Washington: 1970); National Commission on Reform of Federal Criminal Laws,
Working Papers (Washington: 1970), 2 vols.
46
130 S. Ct. 1949 (2010). Breyer wrote the opinion of the Court, joined by
Justices Roberts, Stevens, Ginsburg and Sotamayor. Justices Kennedy and Alito
concurred in the judgement, while Justices Thomas and Scalia dissented.
47
48
130 S. Ct. at 1965.
Justice Kennedy, in concurrence, expressed concern that whether a statute is
"rationally related" to the implementation of a power, see Williamson v. Lee
Optical Co., 348 U.S. 483, 487-88 (1955) (Due Process Clause), is too
deferential a standard to be used as regards the Necessary and Proper Clause.
Justice Kennedy would use a more rigorous "rational basis" standard, found in
Commerce Clause cases, where there must be shown a "demonstrated link in
fact, based on empirical demonstration." See Comstock, 130 S. Ct. 1949 at
1966-67 (Kennedy, J., concurring).
1746
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
Currency Regulations
Reinforced by the necessary and proper clause, the powers “‘to lay and collect
taxes, to pay the debts and provide for the common defence and general welfare
of the United States,’ and ‘to borrow money on the credit of the United States and
to coin money and regulate the value thereon . . . ,’”1750 have been held to give
Congress virtually complete control over money and currency. A prohibitive tax
on the notes of state banks,1751 the issuance of treasury notes impressed with
the quality of legal tender in payment of private debts1752 and the abrogation of
clauses in private contracts, which called for payment in gold coin,1753 were
sustained as appropriate measures for carrying into effect some or all of the
foregoing powers.
Power to Charter Corporations
In addition to the creation of banks, Congress has been held to have authority to
charter a railroad corporation,1754 or a corporation to construct an interstate
bridge,1755 as instrumentalities for promoting commerce among the States, and to
create corporations to manufacture aircraft1756 or merchant vessels1757 as
incidental to the war power.
1747
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 862 (1824).
See also Pittman v. Home Owners’ Corp., 308 U.S. 21 (1939).
1748
First National Bank v. Follows ex rel. Union Trust Co., 244 U.S. 416 (1917);
Missouri ex rel. Burnes National Bank v. Duncan, 265 U.S. 17 (1924).
1749
Smith v. Kansas City Title Co., 255 U.S. 180 (1921).
1750
Juilliard v. Greenman, 110 U.S. 421, 449 (1884).
1751
Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).
1752
Juilliard v. Greenman, 110 U.S. 421 (1884). See also Legal Tender Cases
(Knox v. Lee), 79 U.S. (12 Wall.) 457 (1871).
1753
Norman v. Baltimore & O. R.R., 294 U.S. 240, 303 (1935).
1754
Pacific R.R. Removal Cases, 115 U.S. 1 (1885); California v. Pacific R.R.,
127 U.S. 1, 39 (1888).
1755
Luxton v. North River Bridge Co., 153 U.S. 525 (1894).
1756
Clallam County v. United States, 263 U.S. 341 (1923).
1757
Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922).
Courts and Judicial Proceedings
Inasmuch as the Constitution “delineated only the great outlines of the judicial
power . . . , leaving the details to Congress, . . . [t]he distribution and appropriate
exercise of the judicial power must . . . be made by laws passed by
Congress....”1758 As a necessary and proper provision for the exercise of the
jurisdiction conferred by Article III, § 2, Congress may direct the removal from a
state to a federal court of a criminal prosecution against a federal officer for acts
done under color of federal law,1759 may require the tolling of a state statute of
limitations while a state cause of action that is supplemental to a federal claim is
pending in federal court,49 and may authorize the removal before trial of civil
cases arising under the laws of the United States.1760 It may prescribe the effect
to be given to judicial proceedings of the federal courts1761 and may make all
laws necessary for carrying into execution the judgments of federal courts. 1762
When a territory is admitted as a State, Congress may designate the court to
which the records of the territorial courts shall be transferred and may prescribe
the mode for enforcement and review of judgments rendered by those courts. 1763
In the exercise of other powers conferred by the Constitution, apart from Article
III, Congress may create legislative courts and “clothe them with functions
deemed essential or helpful in carrying those powers into execution.” 1764
Special Acts Concerning Claims
The Necessary and Proper Clause enables Congress to pass special laws to
require other departments of the Government to prosecute or adjudicate
particular claims, whether asserted by the Government itself or by private
persons. In 1924,1765 Congress
adopted a Joint Resolution directing the President to cause suit to be instituted
for the cancellation of certain oil leases alleged to have been obtained from the
Government by fraud and to prosecute such other actions and proceedings, civil
and criminal, as were warranted by the facts. This resolution also authorized the
appointment of special counsel to have charge of such litigation. Private acts
providing for a review of an order for compensation under the Longshoreman’s
and Harbor Workers’ Compensation Act,1766 or conferring jurisdiction upon the
Court of Claims, after it had denied recovery, to hear and determine certain
claims of a contractor against the Government, have been held constitutional. 1767
1758
Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838).
1759
Tennessee v. Davis, 100 U.S. 257, 263 (1880).
49
Jinks v. Richland County, 538 U.S. 456 (2003).
1760
Railway Company v. Whitton, 80 U.S. (13 Wall.) 270, 287 (1872).
1761
Embry v. Palmer, 107 U.S. 3 (1883).
1762
Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53 (1825).
1763
Express Co. v. Kountze Bros., 75 U.S. (8 Wall.) 342, 350 (1869).
1764
Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). But see Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
1765
43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929).
1766
Paramino Co. v. Marshall, 309 U.S. 370 (1940).
Maritime Law
Congress may implement the admiralty and maritime jurisdiction conferred upon
the federal courts by revising and amending the maritime law that existed at the
time the Constitution was adopted, but in so doing, it cannot go beyond the reach
of that jurisdiction.1768 This power cannot be delegated to the States; hence, acts
of Congress that purported to make state workmen’s compensation laws
applicable to maritime cases were held unconstitutional.1769
1767
Pope v. United States, 323 U.S. 1 (1944).
1768
Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934).
1769
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v.
Dawson & Co., 264 U.S. 219 (1924).