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 the Constitution in the Government of the United States, or in any Department or Officer thereof. Annotations NECESSARY AND PROPER CLAUSE Scope and OperationThe Necessary and Proper Clause, sometimes called the “coefficient” or “elastic” clause, is an enlargement, not a constriction, of the powers expressly granted to Congress. Chief Justice Marshall’s classic opinion in McCulloch v. Maryland set the standard in words that reverberate to this day. “Let the end be legitimate,” he wrote, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” Moreover, the provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments. Practically every power of the National Government has been expanded in some degree by the Necessary and Proper Clause. Under the authority granted it by that clause, Congress has adopted measures requisite to discharge the treaty obligations of the nation, has organized the federal judicial system, and has enacted a large body of law defining and punishing crimes. Effective control of the national economy has been made possible by the authority to regulate the internal commerce of a state to the extent necessary to protect and promote interstate commerce. The right of Congress to use all known and appropriate means for collecting revenue, including the distraint of property for federal taxes, and to exercise the power of eminent domain to acquire property for public use, have greatly extended the range of national power. But the widest application of the Necessary and Proper Clause has occurred in the field of monetary and fiscal controls. Because the various specific powers granted by Article I, § 8, do not add up to a general legislative power over such matters, the Court has relied heavily upon this clause to sustain the comprehensive control that Congress has asserted over this subject. Definition of Punishment and CrimesAlthough the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded. Illustrative of the offenses which have been punished under this power are the alteration of registered bonds, the bringing of counterfeit bonds into the country, conspiracy to injure prisoners in custody of a United States marshal, impersonation of a federal officer with intent to defraud, conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States, the receipt by government officials of contributions from government employees for political purposes, and advocating the overthrow of the government by force. Part I of Title 18 of the United States Code comprises more than 500 sections defining penal offenses against the United States. One of the most expansive interpretations of the Necessary and Proper Clause arose in the context of the administration of the federal penal system. In United States v. Comstock, the Court evaluated a federal statute which allowed for the civil commitment of a federal prisoner past the term of his imprisonment if that prisoner would have serious difficulty in refraining from sexually violent conduct or child molestation. The statute contained no requirement that the threatened future conduct would fall under federal jurisdiction, raising the question of what constitutional basis could be cited for its enforcement. The majority opinion in Comstock upheld the statute after considering five factors: (1) the historic breadth of the Necessary and Proper Clause; (2) the history of federal involvement in this area; (3) the reason for the statute’s enactment; (4) the statute’s accommodation of state interests; and (5) whether the scope of statute was too attenuated from Article I powers. In evaluating these factors, the Court noted that previous federal involvement in the area included not only the civil commitment of defendants who were incompetent to stand trial or who became insane during the course of their imprisonment, but, starting in 1949, the continued confinement of those adjudged incompetent or insane past the end of their prison term. In upholding the sex offender statute, the Court found that protection of the public and the probability that such prisoners would not be committed by the state represented a “rational basis” for the passage of such legislation. The Court further found that state interests were protected by the legislation, as the statute provided for transfer of the committed individuals to state authorities willing to accept them. Finally, the Court found that the statute was not too attenuated from the Article I powers underlying the criminal laws which had been the basis for incarceration, as it related to the responsible administration of the United States prison system. Chartering of BanksAs an appropriate means for executing “the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies . . . ,” Congress may incorporate banks and kindred institutions. Moreover, it may confer upon them private powers, which, standing alone, have no relation to the functions of the Federal Government, if those privileges are essential to the effective operation of such corporations. Where necessary to meet the competition of state banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business. The Court will not undertake to assess the relative importance of the public and private functions of a financial institution Congress has seen fit to create. It sustained the act setting up the Federal Farm Loan Banks to provide funds for mortgage loans on agricultural land against the contention that the right of the Secretary of the Treasury, which he had not exercised, to use these banks as depositories of public funds, was merely a pretext for chartering those banks for private purposes. Currency RegulationsReinforced by the necessary and proper clause, the powers “ ‘to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the United States,’ and ‘to borrow money on the credit of the United States and to coin money and regulate the value thereon . . . ,’” have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of state banks, the issuance of treasury notes impressed with the quality of legal tender in payment of private debts and the abrogation of clauses in private contracts, which called for payment in gold coin, were sustained as appropriate measures for carrying into effect some or all of the foregoing powers. Power to Charter CorporationsIn addition to the creation of banks, Congress has been held to have authority to charter a railroad corporation, or a corporation to construct an interstate bridge, as instrumentalities for promoting commerce among the states, and to create corporations to manufacture aircraft or merchant vessels as incidental to the war power. Courts and Judicial ProceedingsBecause the Constitution “delineated only the great outlines of the judicial power . . . , leaving the details to Congress, . . . [t]he distribution and appropriate exercise of the judicial power must . . . be made by laws passed by Congress. . . .” As a necessary and proper provision for the exercise of the jurisdiction conferred by Article III, § 2, Congress may direct the removal from a state to a federal court of a criminal prosecution against a federal officer for acts done under color of federal law, may require the tolling of a state statute of limitations while a state cause of action that is supplemental to a federal claim is pending in federal court, and may authorize the removal before trial of civil cases arising under the laws of the United States. It may prescribe the effect to be given to judicial proceedings of the federal courts and may make all laws necessary for carrying into execution the judgments of federal courts. When a territory is admitted as a state, Congress may designate the court to which the records of the territorial courts shall be transferred and may prescribe the mode for enforcement and review of judgments rendered by those courts. In the exercise of other powers conferred by the Constitution, apart from Article III, Congress may create legislative courts and “clothe them with functions deemed essential or helpful in carrying those powers into execution.” Special Acts Concerning ClaimsThe Necessary and Proper Clause enables Congress to pass special laws to require other departments of the government to prosecute or adjudicate particular claims, whether asserted by the government itself or by private persons. In 1924, Congress adopted a Joint Resolution directing the President to cause suit to be instituted for the cancellation of certain oil leases alleged to have been obtained from the government by fraud and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. This resolution also authorized the appointment of special counsel to have charge of such litigation. Private acts providing for a review of an order for compensation under the Longshore and Harbor Workers’ Compensation Act, or conferring jurisdiction upon the Court of Claims, after it had denied recovery, to hear and determine certain claims of a contractor against the government, have been held constitutional. Maritime LawCongress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law that existed at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction. This power cannot be delegated to the states; hence, acts of Congress that purported to make state workers’ compensation laws applicable to maritime cases were held unconstitutional. Page 2Justia US Law US Codes and Statutes US Constitution Annotated Article I. Legislative Department Importation of Slaves
SECTION 9. Clause 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. Annotations IN GENERALThis sanction for the importation of slaves by the states for twenty years after the adoption of the Constitution, when considered with the section requiring escaped slaves to be returned to their masters, Art. IV, § 1, cl. 3, was held by Chief Justice Taney in Scott v. Sandford, to show conclusively that such persons and their descendants were not embraced within the term “citizen” as used in the Constitution. Today this ruling is interesting only as an historical curiosity. |