Necessary-and-proper clause

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The necessary-and-proper clause (also known as the elastic clause) refers to Article One Section 8 paragraph 18 of the United States Constitution:

The interpretation of this phrase has been controversial, especially during the early years of the republic. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers. Others argue that the elastic clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers. It is often known as the elastic clause because of the great amount of leeway in interpretation it allows; depending on the interpretation, it can be used to "stretch" or expand the powers of Congress, or allowed to "contract", limiting Congress.

One early controversy involving the "necessary and proper" clause were the charterings of the Bank of the United States. Although the Constitution does not explicitly give Congress the authority to establish a national bank, the move was justified as being a "necessary and proper" exercise of Congress authority to make laws regulating interstate commerce under the commerce clause. Alexander Hamilton made the bank by loosely interpreting the constitution because he, a Federalist, was the party in power; but Thomas Jefferson, a Democratic Republican -the party out of power- wanted to strictly interpret the constitution, in order to limit the Federalists' power. In McCulloch v. Maryland, Chief Justice John Marshall ruled that a state cannot sue a federal institution (the national bank), hence, the elastic clause used to make it was constitutional. Following the War of 1812, the Democratic Republicans realized that the nation did need a national bank to save the nation's revenue, following the war debt, so the charter was re-instituted. The controversy of its constitutionality continued until the renewal of its charter was vetoed by President Andrew Jackson.

The elastic clause has been paired with the commerce clause in particular to provide the constitutional basis for a wide variety of laws. For example, legislation making it a federal crime to transport a kidnapped person across state lines is justified by considering the act to be commerce. A series of Supreme Court decisions resulting in the desegregation of private businesses, such as hotels and restaurants, was 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. United States v. Lopez was the first modern case finding limits to Congress' authority in this regard.

See also

• Implied powers