Necessary and Proper

Congress is a legislature granted enumerated powers by Article I, Section 8 of the constitution. The constitution’s enumeration of congressional powers means that, unlike most state legislatures, it does not possess a general legislative jurisdiction to regulate for the public health, safety, and welfare. Rather, if Congress is to pass legislation, that legislation must be authorized by one of its enumerated powers. But as we saw last time, in practice Congress’s commerce power has operated remarkably like a general police powers authority, despite periodic attempts by the Supreme Court to tamp down on excessively broad applications of the Commerce Clause.

A loosely defined conception of “commerce” is one reason for such expansive scope. A second factor is the Necessary and Proper Clause. At the end of Art. I, Sec. 8’s list of Congress’s enumerated powers is appended the following provision:

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.

So, the Necessary and Proper Clause grants Congress authority to pass laws “necessary and proper” to carry out any of its enumerated powers. But what laws are necessary and proper?

The scope of necessary and proper became immediately controversial after the ratification of the constitution, when the first Congress enacted a law incorporating a national bank. Art. I, Sec. 8 does not authorize Congress to charter a bank in explicit terms. But perhaps a national bank is necessary and proper to the execution of one of Congress’s enumerated powers? James Madison, for one, was having none of it:

The essential characteristic of the Government, as composed of limited and enumerated powers, would be destroyed, if instead of direct and incidental means, any means could be used which, in the language of the preamble to the [bank] bill, “might be conceived to be conducive to the successful conducting of the finances, or might be conceived to tend to give facility to the obtaining of loans.”

So, for Madison, a law is not necessary and proper to carry out an enumerated power merely because it is useful for doing so. The law must actually be directly related to the enumerated power. Thomas Jefferson piled on:

[T]he constitution allows only the means which are “necessary, “ not those which are merely convenient for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase, as to give any non enumerated power, it will go to every one; for there is no one, which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers: it would swallow up all the delegated powers.

But Alexander Hamilton took up the cause of the bank (it was, after all, his idea in the first place). He wrote that to adopt Madison’s narrow interpretation of the word “necessary” would be to

depart from its obvious and popular sense, and to give it a restrictive operation, an idea never before entertained. It would be to give it the same force as if the word absolutely, or indispensably, had been prefixed to it.

Such a construction would beget endless uncertainty and embarrassment. The cases must be palpable and extreme, in which it could be pronounced with certainty, that a measure was absolutely necessary; or one, without which the exercise of a given power would be nugatory.

Of course, these constitutional arguments were only legal attacks deployed in a larger partisan political war between the Federalists, who favored a strong central government and saw the need for public finance, and the Jeffersonian Republicans,¹ who associated national banks with financial chicanery and standing armies.

The question of bank’s constitutionality eventually came before the Supreme Court in 1819 in McCulloch v. Maryland. Luckily for proponents of the bank, Chief Justice Marshall was a card carrying Federalist. In upholding the constitutionality of the bank, the Chief Justice adopted the Hamiltonian reading of the Necessary and Proper Clause. He explained that

To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.

The narrow construction of “necessary” would be “pernicious in its application” and “render[] the government incompetent to its great objects.” Also, he said, strictly construing “necessary” to limit Congress to only those laws absolutely essential to carrying out its functions would be hella dumb:

To have declared, that the best means shall not be used, but those alone, without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

With McCulloch, the permissive meaning of “necessary” was locked in. Congress may pass any law “convenient, or useful, or essential” to effectuating its enumerated powers.²

And the court’s subsequent twentieth century opinion in Wickard v. Filburn is comprehensible only by considering the commerce power in light of this understanding of necessary and proper. Consuming home grown food is seemingly the opposite of commerce. But regulation of such non-commercial activity was necessary and proper to control interstate wheat prices:

The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs.

Stimulating market demand by restricting non-commercial production might not be absolutely necessary to regulate prices, but it sure was a useful and convenient way to do so. And so, it was a necessary and proper application of the interstate commerce power.

But once we conclude that the interstate commerce power grants Congress authority to regulate intrastate non-commerce, so long as it can be said to affect interstate commerce, it’s hard to sketch out any limiting principle on the Commerce Clause, given our integrated economy. Madison made precisely this point:

In the great system of political economy, having for its object the general welfare, everything is related immediately or remotely to every other thing; and, consequently, a power over any one thing, if not limited by some obvious and precise affinity, may amount to a power over every other.

1. Not to be confused with the Republican Party of Lincoln, the direct ancestor of the modern GOP.

2. But McCulloch did not resolve the controversy over the national bank. Andrew Jackson subsequently vetoed a later bank bill on the theory that banks exceeded Congress’s authority. The nation would not have another national bank until the federal reserve system was established in the twentieth century.