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.


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).

1733 See discussion of “20#07">Necessary and Proper Clause” under the commerce power, supra.

1734 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).

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.

47 130 S. Ct. at 1965.

48 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).

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Last modified: June 9, 2014