Everything about Necessary-and-proper Clause totally explained
The
necessary and proper clause (also known as the
elastic clause, the
basket clause, the
coefficient clause, and the
sweeping clause) refers to the provision in
Article One of the United States Constitution, section 8, clause 18, that "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 in any Department or Officer thereof."
The clause has been paired with the
Commerce Clause to provide the constitutional basis for a wide variety of
federal laws, including
criminal laws, which were not considered implied powers of a power to regulate by
Anti-Federalists. For example, Congress in the
Federal Kidnapping Act made it a crime to transport a
kidnapped person across state lines, because the transportation would be an act of interstate activity over which the Congress has power.
The
Supreme Court in
Wickard v. Filburn (1942), upheld a federal statute making it a crime for a farmer to eat his own wheat that was subjected to
price and production controls. A series of Supreme Court decisions resulting in the
desegregation of private businesses, such as
hotels and
restaurants, were supported on the basis that these business establishments, although not directly engaged in interstate commerce, no doubt had an effect on it. Since the
New Deal the Supreme Court has been reluctant to limit the scope of authority allowed under the combination of these clauses.
The term "necessary-and-proper clause" comes from the
Associate Justice Louis Brandeis, writing for the majority in the Supreme Court decision in
Lambert v. Yellowley (1926).
The phrase became the label of choice and was universally adopted by the courts and received Congress' imprimatur in
Title 50 of the United States Code, section 1541(b) (1994), on the purpose and policy of the
War Powers Resolution.
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The clause doesn't require that all federal laws be necessary and proper; federal laws that are enacted directly pursuant to one of the enumerated powers need not comply with the clause. As Chief Justice Marshall put it, this clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted."
McCulloch v. Maryland,
17 U.S. 316, 420 (
1819) quoted in
Printz v. United States,
521 U.S. 898 (
1997) (Stevens, J., dissenting, joined by Souter, Ginsburg & Breyer, JJ.).
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