Necessary and proper clause

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Article 1, Section 8 of the U.S. Constitution includes a final clause that assigns to Congress 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.

According to the Legal Information Institute, the “Necessary and Proper Clause” was included in the Constitution to correct a deficiency of the Articles of Confederation (1781-1789), which had limited federal power to only those powers “expressly delegated to the United States.” The deficiency arose because it would be impossible to foresee and include in the Constitution all the powers needed to execute all the laws. For example, the framers could not have anticipated and included in the Constitution the need to regulate the military and commercial use of the national airspace. The framers chose to make clear that Congress’s power encompassed the implied power to use all appropriate means required to execute all expressly enumerated powers.

Why it matters: The “Necessary and Proper Clause” is probably the most important provision in the Constitution. It is the constitutional source of the majority of federal laws. Virtually all of the laws establishing the machinery of government, as well as substantive laws ranging from anti-discrimination laws to labor laws, are enacted under the authority of the Necessary and Proper Clause. The clause is therefore highly contested.

As the National Constitution Center observes, “If the Necessary and Proper Clause has a relatively broad scope, as the second vision and two centuries of case law has largely maintained, it provides constitutional authorization for much of the existing federal machinery. If it has a narrower scope, as the first vision and a small but vocal group of Justices and scholars maintains, a great many federal laws that have been taken for granted for a long time might be called into question. The correct interpretation of the Necessary and Proper Clause might – just might – be the single most important question of American constitutional law.”

Two competing essays on the clause and its’ interpretation can be found here:

Legal Information Institute
National Constitution Center

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