Article I, Section 8, Clause 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.
The Necessary and Proper Clause1 concludes Article I’s list of Congress’s enumerated powers with a general statement that Congress’s powers include not only those expressly listed, but also the authority to use all means necessary and proper for executing those express powers. Under the Necessary and Proper Clause, congressional power encompasses all implied and incidental powers that are conducive to the beneficial exercise of an enumerated power.2 The Clause does not require that legislation be absolutely necessary to the exercise of federal power.3 Rather, so long as Congress’s end is within the scope of federal power under the Constitution, the Necessary and Proper Clause authorizes Congress to employ any means that are appropriate and plainly adapted to the permitted end.4
The Necessary and Proper Clause was included in the Constitution in response to the shortcomings of the Articles of Confederation, which had limited federal power to only those powers expressly delegated to the United States.5 While the Framers chose to follow the Articles in enumerating a list of specific federal powers—as opposed to some general statement of federal power6—they included the Necessary and Proper Clause to make clear that Congress’s power encompassed the implied power to use all appropriate means required to execute those express powers.7 The Necessary and Proper Clause was not a primary focus of debate at the Constitutional Convention itself, but its meaning quickly became a major issue in the debates over the ratification of the Constitution,8 and in the early Republic.9
The Supreme Court has interpreted the Necessary and Proper Clause as an extension of the other powers vested in the federal government, most notably Congress’s enumerated Article I powers.10 Thus, whenever the Supreme Court addresses the outer limits of Congress’s enumerated powers, it necessarily invokes the Necessary and Proper Clause as well, either explicitly or implicitly.11 However, the Necessary and Proper Clause is not, in itself, an independent grant of congressional power.12 Although the Necessary and Proper Clause is therefore implicated in many cases examining the extent of Congress’s power under, for example, the Commerce Clause, those decisions are primarily addressed elsewhere in the Constitution Annotated, under the particular enumerated federal power at issue.13
In a few cases, however, the Supreme Court has analyzed Congress’s power under the Necessary and Proper Clause separately from any specific enumerated power. Typically, these cases involve either multiple enumerated powers,14 or congressional actions that are many steps removed from the exercise of the underlying enumerated federal power.15 Because the extent of the Necessary and Proper Clause defines the outer reaches of Congress’s Article I legislative powers, these cases, in effect, delineate the boundary between the authority of the federal government and those areas reserved to the states.16
This section first reviews the history of the Necessary and Proper Clause’s inclusion in the Constitution and its role in the ratification debates. Next, the section turns to the early judicial interpretation of the Clause, culminating in the Chief Justice Marshall’s landmark 1819 opinion in McCulloch v. Maryland. After briefly reviewing the major nineteenth century Supreme Court decisions on the Necessary and Proper Clause following McCulloch, the section concludes with a review of the modern Supreme Court cases on the scope of Congress’s power under the Clause.