Link to page on John Marshall and Marbury v. Maryland

Overview of the Necessary and Proper Clause  (Summary by Zachary McDaniel, April, 2019)

Interpretation of the Necessary and Proper Clause

The Constitution gives Congress defined and assumed powers.

Many of these assumed powers have come from the Necessary and Proper Clause.

The three requirements are that the law is necessary and proper for carrying into execution some federal power.

Therefore, essentially every law that can reasonably be connected to setting up the machinery of government is enacted under this clause.

The clause gives Congress the powers that can be reasonably assumed from the writing of the Constitution, even if not explicitly stated.

Court Cases

• McCulloch v. Maryland (1819)

• Most famous case for interpreting the Necessary and Proper Clause

• Court gave Congress the power to create a national bank

• More importantly, however, the court gave Congress the power to determine what is necessary for the execution of federal powers

• Later cases lightened the burden of evidence Congress needed to provide in order to prove a law was rationally necessary and proper for the execution of federal powers
• "No congressional law has ever been held unconstitutional by the Supreme Court on the stated ground that it was not 'necessary' to implement..."
• This light burden of evidence for proving a connection to the clause has earned the clause the name, the elastic clause

• Wickard v. Filburn (1942)

• United States v. Comstock (2010) 

• Printz v. United States (1997)
• Held that a federal law compelling state executive officials to implement federal gun registration requirements was not 'proper' because it did not respect the separation of powers given to the federal government and the states 

• NFIB v. Sebelius (2012)

The Interstate Commerce Clause

The Interstate Commerce Clause has been used to expand federal powers, as long as Congress can prove there is a reasonable connect between a law and interstate commerce.

Test Question

Which of the following statements best describes the McCulloch v. Maryland Supreme Court decision?

a)     The precedent that states could tax federal institutions

b)     The creation of a national bank

c)     When the Supreme Court ruled that the federal government could create a national bank, they limited federal power by allowing the states to tax federal institutions

d)     When the Supreme Court ruled that the federal government could create a national bank, they greatly increased federal power under the necessary and proper clause (correct)

Feedback: While McCulloch v. Maryland allowed for the creation of a national bank, B is not the most complete answer. McCulloch v. Maryland allowed for the creation of a national bank and set the precedent that federal institutions could not be taxed by the states. For this reason, both A and C are incorrect. Setting the precedent that the federal government could set up institutions that could not be taxed by the states, as long as it met the elastic necessary and proper clause, federal power was greatly expanded.