December 27, 2023 | SCOTUS Issues Term’s First Decision – Finds ADA Case Moot
|The Necessary and Proper Clause
|The final provision of Article I, Section 8 is known as the Necessary and Proper Clause. It gives Congress the ability “[T]o 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.” In other words, Congress is also given the authority to act to further any of its express powers, even if the particular action isn’t expressly delineated. Thus, this clause theoretically authorizes implied powers, provided that the actions Congress takes can be generally grounded in some other constitutional provision.While this clause is written into the text of the Constitution, it was expounded on by the Supreme Court in McCulloch v. Maryland (1819), which is still today considered to be of extreme importance in understanding the meaning of the Necessary and Proper Clause.In McCulloch, the Court dealt with the federal government’s establishment of a national bank. The state of Maryland sued the government, alleging that, because the Constitution did not expressly grant Congress the authority to set up a bank, it did not have such an ability. Therefore, argued Maryland, the bank was unconstitutional. The Court, however, disagreed. It looked to the Necessary and Proper Clause to assert that Congress’ authority is not limited to the express provisions. There was some flexibility in the text, argued Chief Justice Marshall, writing for the Court. It is here that the Chief Justice wrote the words that are still regularly cited in court cases and academic treatises alike: “In considering this question, then, we must never forget, that it is a constitution we are expounding.”
More technically, the Court held that, although the Necessary and Proper Clause could be read narrowly (only authorizing whatever is absolutely necessary to uphold the other provisions of the Constitution), the Court interpreted the clause broadly: provided Congress’ goal could legitimately be said to relate to some express provision, the Necessary and Proper Clause permitted action to achieve that goal. The Court considered the establishment of a bank as legitimately relating to Congress’ express authority to tax and regulate commerce.
|McCulloch v. Maryland (1819)