Necessary and Proper Laws

                    The topic of discussion for this Constitution Monday comes from Article I.8.18:  "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."

                    This provision is known as the "necessary and proper clause" or the "elastic clause," and it basically gives Congress the power and authority to pass any other laws necessary to governing by the United States Constitution.  The Founders felt this provision was "necessary and proper" to the new government, but they also made sure that people understood their intent.  This clause is meant to facilitate proper governing, not to delegate other powers, and its authority extends only as far as the enumerated power given to Congress.

                    "At the Constitutional Convention, the Committee of Detail took the Convention's resolutions on national legislative authority and particularized them into a series of enumerated powers.  This originated the principle of enumerated powers, under which federal law can govern only as to matters within the terms of some power granting clause of the Constitution.  By including the Necessary and Proper Clause, the Framers set the criterion for laws that, even if they are not within the terms of other grants, serve to make other federal powers effective….

"It should be emphasized, however that the Necessary and Proper Clause authorizes Congress to enact laws that are `appropriate' and plainly adapted for carrying into execution Congress's enumerated powers; it does not authorize Congress to enact any law that Congress thinks is `reasonable.'  …

"The Necessary and Proper Clause does not confer general authority over a matter simply because its regulation in some respects might serve an enumerated-power end; it only supports the particular regulations that have such an effect…." (See David Engdahl, The Heritage Guide to the Constitution, p 146.)

W. Cleon Skousen quoted James Madison that "Without the substance of this power, the whole Constitution would be a dead letter….

"Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates…." (The Making of America - The Substance and Meaning of the Constitution, p 462).