By: Mike Maharrey
“Necessary and proper” ranks among the most abused clauses in the Constitution. It has been dubbed the “elastic clause” because of the perception that it allows the scope of federal power to expand. The federal government began abusing this clause within years of ratification. In 1800, James Madison countered these early abuses, forcefully arguing that it’s not elastic at all and doesn’t give the government any additional powers.
The necessary and proper clause simply states that Congress has 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.”
During the ratification debates, anti-federalists warned that the central government would abuse the clause to expand power, but supporters of the Constitution swore it would not. Even Alexander Hamilton argued that necessary and proper didn’t add to the government’s power. In Federalist #33, Hamilton addressed both the necessary and proper clause and the also oft-abused supremacy clause.
“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.”
It didn’t take long for proponents of centralized federal power to turn to the necessary and proper clause to justify unconstitutional actions. In 1798, Congress passed the Alien and Sedition Acts. Two of the acts relating to aliens gave the executive branch broad authority to deport non-citizens living in the U.S. without due process. Opponents argued the Alien Acts violated the Fifth Amendment and unconstitutionally vested judicial powers in the hands of the president. The Sedition Act essentially outlawed criticism of the president and Congress. It was a clear violation of the First Amendment.
Among their many arguments, supporters of the Alien and Sedition Acts pointed to the necessary and proper clause to justify this usurpation of power. James Madison took them to task in his Report of 1800.
The Report was a lengthy defense of the Virginia Resolutions of 1798. Madison drafted these resolutions in response to the Alien and Sedition Acts. They asserted states “have the right, and are in duty bound to interpose” when the federal government engages in a deliberate, palpable, and dangerous exercise of undelegated powers. They also laid out a case condemning the acts as unconstitutional. In the Report of 1800, Madison addressed every justification used by supporters of the Alien and Sedition Acts in exacting detail, including their appeal to the necessary and proper clause. Madison echoed what Hamilton had written years earlier, arguing that the clause does nothing to expand the powers of the general government,
“The plain import of this clause is, that Congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.”
Madison went on to offer a simple 2-step process to determine the constitutionality of any federal action.
“Whenever, therefore a question arises concerning the constitutionality of a particular power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided.
If the a delegated power exists authorizing the federal action, that settles the issue. Nobody argues that the federal government can run the Post Office. Article 1 Sec. 8 explicitly authorizes this. But if we find no delegated power, Madison prescribes a second step.
“If it [the power] be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not; Congress cannot exercise it.”
In other words, if the federal action is absolutely necessary to carry out a power clearly spelled out in the Constitution, and it is a proper, or customary, way of doing so, then, as Madison put it, “it may be exercised by Congress. If it be not; Congress cannot exercise it.
Legal documents delegating power to an agent often contain a necessary and proper clause. It has a precise, specific legal definition that was well-understood in the founding era. in simplest terms, a necessary and proper clause authorizes an agent to exercise powers not explicitly spelled out in the legal document, but necessary to execute the specific authority given to him. It serves as a kind of shorthand and eliminates the need to list every incidental power the agent can exercise.
Imagine I enter into a contract with somebody to manage my grocery store. If I stipulates that she has all of the powers “necessary and proper” to running a grocery, I don’t have to to specify that she has the authority to pay a guy to clean the floors, or to hire a mechanic to fix a freezer when it goes down, or to pay the Coca Cola vendor, Those powers are proper and customary to running a grocery store. But necessary and proper powers wouldn’t give my new manager the authority to give away all of the food items in my store and turn it into a pornography shop. That would not be necessary, nor would it be proper.
Judges and elected officials have expanded the impact of “necessary and proper” far beyond its original meaning. They have effectively turned it into the anything and everything clause. Madison clearly argues this was not the intent.