The Necessary and Proper Clause

 The Necessary and Proper Clause/ Elastic Clause

The Necessary and Proper Clause is sometimes called the Elastic Clause because it gives Congress the flexibility to pass laws in other areas that aren't explicitly listed in the Constitution. The Necessary and Proper Clause gives Congress the authority to enact laws about subjects that aren't explicitly listed in the Constitution. It was created to give Congress the flexibility to change over time. The Necessary and Proper Clause is significant because it has been interpreted to give Congress broad authority to enact laws about issues that aren't explicitly listed in the Constitution.

One of the first examples of Congress invoking its authority under the Necessary and Proper Clause was to create a national bank. McCulloch v. Maryland (1819) is one of the first and most important Supreme Court cases on federal power. In this case, the Supreme Court held that Congress has implied powers derived from those listed in Article I, Section 8. The “Necessary and Proper” Clause gave Congress the power to establish a national bank. 

The clause has been paired with the Commerce Clause to provide the constitutional basis for a wide variety of federal laws. For instance, various reforms involved in the New Deal were found to be necessary and proper enactments of the objective of regulating interstate commerce 

In Wickard v. Filburn (1942), the Supreme Court upheld a federal statute making it a crime for a farmer to produce more wheat than was allowed under price and production controls, even if the excess production was for the farmer's own personal consumption. The Necessary and Proper Clause was used to justify the regulation of production and consumption 

The United States Congress has enacted federal statutes intended to address pollution control and remediation, including for example the Clean Air Act (air pollution), the Clean Water Act (water pollution), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) (contaminated site cleanup). There are also federal laws governing natural resources use and biodiversity which are strongly influenced by environmental principles, including the Endangered Species Act, National Forest Management Act, and Coastal Zone Management Act. The National Environmental Policy Act, governing environmental impact review in actions undertaken or approved by the U.S. federal government, may implicate all of these areas. 

In 1997  the Supreme Court held in Printz v. United States that a federal law compelling state executive officials to implement federal gun registration requirements was not “proper” because it did not respect the federal/state boundaries that were part of the Constitution’s background or structure. Some later cases extended that holding to other matters involving federal/state relations. In NFIB v. Sebelius (2012), a constitutional challenge to “Obamacare,” the federal health care law, the Court sharply divided over whether a law could ever fail to be “proper” if it did not involve direct federal regulation of state governments or state officials.  

The Constitution outlines numerous powers granted to Congress, including significant powers such as regulating interstate and foreign commerce and seemingly minor ones like establishing post offices and post roads. However, many powers that people expect Congress to utilize, both in the present and in 1788 when the Constitution was ratified, are not explicitly listed. While the Constitution presumes the existence of federal departments, offices, and officials, it does not specifically authorize Congress to create them. Congress has the defined authority to punish counterfeiting and piracy, yet there is no clear general permission to impose criminal or civil penalties for breaches of federal law. Although several sections of the Constitution grant Congress considerable control over national finances, there is no mention of a national bank or federal corporation. These implicit yet undeniable powers of Congress, along with many others, arise from the clause at the end of Article I, Section 8, which empowers Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution” the federal powers assigned by the Constitution. This residual clause—often referred to as the “Elastic Clause,” the “Sweeping Clause,” or, since the twentieth century, the “Necessary and Proper Clause”—serves as the constitutional foundation for the majority of federal legislation. Nearly all laws that establish the framework of government, along with significant legislation such as antidiscrimination and labor laws, are enacted under the authority of the Necessary and Proper Clause. This Clause may be considered the most crucial provision in the Constitution.