Why was elastic clause created?

Explain the necessary and proper clause and why it is often referred to as the “elastic clause.” (Massachusetts Curriculum Framework for History and Social Studies) [8.T5.1]

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FOCUS QUESTION: What is the Role of the Necessary and Proper Clause?
Suggested Learning Activities

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FOCUS QUESTION: What is the Role of the Necessary and Proper Clause?

The Necessary and Proper Clause (also known as the Elastic Clause) is one of the most far-reaching aspects of the United States Constitution. Article 1, Section 8, Clause 18 of the Constitution reads:

"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."

Legal scholars have called it the "single most important provision in the Constitution" (The Necessary and Proper Clause).

There is an inherent tension between the necessary and proper clause and the 10th Amendment. While the necessary and proper clause states Congress can make the laws needed to carry out its Constitutional functions, the 10th Amendment states powers not delegated to the federal government are given to the states. As a result, there are ongoing disputes over which part of government (federal or state) has the power to take certain actions.

You can learn more about the 10th Amendment in Topic 6.5 of this book.

History of the Necessary and Proper Clause

In writing the Constitution, the framers gave Congress both defined and assumed powers. "Defined" means specified and fixed powers. "Assumed" means that Congress may enact any law that can be seen as: 1) necessary; 2) proper; and 3) carries out federal power (McDaniel, 2019). You can read text and commentary about the Necessary and Proper Clause from National Constitution Center's Interactive Constitution website.

Reviewing the origins of the necessary and proper clause, Doug Linder of the University of Missouri-Kansas City School of Law explained that Alexander Hamilton and Thomas Jefferson had sharply opposing views about the clause and its uses.

Hamilton who favored a strong central government saw the elastic clause as a broad license to act whenever needed.

Jefferson who wanted a smaller, more limited federal government, thought this power should be used only when absolutely necessary.

Still, Linder notes, it was Jefferson who authorized the Louisiana Purchase even though he was not sure he had the power to do so.

Uses of the necessary and proper clause during the 20th Century are listed on its Wikipedia page, including the Federal Kidnapping Act of 1932 which made transporting a kidnapped person across state lines a federal crime under the Constitution's Commerce Clause.

In Printz v. United States (1997), the Supreme Court ruled that requiring states to follow federal gun registration rules was not proper it because it infringed on the powers of states.

In the 2012 case National Federation of Independent Business v. Sebelius, the Supreme Court said Congress could not use the necessary and proper clause to justify the individual mandate feature of the Affordable Care Act (also known as Obamacare).

You can learn more about the enumerated and implied powers of government in Topic 6.3 of this book.

Suggested Learning Activities

Role-Play a Landmark Case
- In small groups,
  - Select a legal case in which the Necessary and Proper Clause was used
  - Create a video in which you role-play the most influential aspects of the case and the use of the clause

State Your View
- Discuss and debate: How broad should the powers of Congress be under the elastic clause?

After reading this section, you should be able to answer the following questions:

What are the powers of Congress as enumerated in the US Constitution?
What powers are reserved specifically for the House of Representatives, and what powers are held by the Senate alone?
What is the Constitution’s elastic clause, and how is it used to expand the powers of Congress?

The institution of Congress is responsible for carrying out the legislative duties of the federal government. The powers of Congress are enumerated in Article I of the Constitution. The founders established Congress in Article I, Section 1, which states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” By instituting Congress in the first article of the Constitution the founders asserted their belief that the legislative branch should be the chief policymaking body. They preferred a government with power vested in the legislature, which they considered most representative of the people, rather than one where the executive was preeminent. They associated the executive branch with the British monarchy, which they had fought against in the Revolutionary War, so they relegated the presidency to the second article of the Constitution. As James Madison wrote in Federalist No. 51, “In a republican government, the legislative authority necessarily predominates” (Rossiter, 1961).

Congress was granted tremendous political power by the founders. These powers are listed primarily in Article I, Section 8, of the Constitution, which states that Congress has broad discretion to “provide for the common defense and general welfare of the United States.” To achieve this end, Congress has the authority to make and implement laws.

The Constitution lists a number of specific powers entrusted to Congress. These include responsibility for the nation’s budget and commerce, such as the power to lay and collect taxes, to pay the debts, to regulate commerce with foreign nations and among the states, to coin money, and to establish post offices. Congress is assigned the power to declare war and to raise an army and navy. Congress has the right to propose amendments to the Constitution and to create new states.

Figure 12.1 Constitutional Powers of Congress

Certain powers are granted specifically to the House, such as the power to initiate all tax and spending bills. While the Senate cannot propose such bills, it can accept, reject, or amend them. The Senate has certain authority not vested in the House. High-level presidential nominees, such as cabinet officers, Supreme Court justices, and ambassadors, must gain Senate approval. The Senate also must concur in treaties with foreign countries.

The final paragraph of Article I, Section 8, grants to Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” This provision is known as the elastic clause because it is used to expand the powers of Congress, especially when national laws come into conflict with state laws. Legislation making it a federal crime to transport a kidnapped person across state lines was justified on the basis that the elastic clause allowed Congress to apply its power to regulate commerce in this situation. The reach of congressional power is explored on the website of the University of Missouri–Kansas City Law School.

Article I of the Constitution establishes Congress as the legislative branch of government with broad powers to provide for the “common defense and general welfare of the United States,” along with specific powers in important areas of domestic and foreign affairs. Certain powers, such as the ability to initiate taxing and spending bills, rest exclusively with the House of Representatives. Other powers, including the approval of presidential appointments, lie solely with the Senate. The powers of Congress have been extended through the elastic clause of the Constitution, which states that Congress can make all laws that are “necessary and proper” for carrying out its duties.