U.S. Constitution · Article I, Section 8, Clause 18

Necessary and Proper Clause

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Also known as: Necessary and Proper Clause

The Necessary and Proper Clause grants Congress the power to make all laws that are necessary and proper for carrying out its enumerated powers and all other powers vested in the federal government.

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Cited in 26 SI Solutions, 218 grades, 7 Think Tank ideas and 1 SI Senate measure this month.

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The text

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.

National Archives transcription (public domain; original spelling and capitalization). archives.gov

SI explainer

What it means

The Necessary and Proper Clause is the final clause in Article I, Section 8, which lists Congress's specific powers. It says that Congress can make any law that is 'necessary and proper' for carrying out the powers listed earlier in the Constitution, as well as any other powers given to the federal government or its departments or officers. This clause allows Congress to choose the means to achieve its enumerated powers. In practice, the Supreme Court has interpreted this clause to give Congress broad discretion. For example, in McCulloch v. Maryland (1819), the Court held that Congress had implied power under the Necessary and Proper Clause to charter a national bank. In Gonzales v. Raich (2005), the Court held that Congress may prohibit the local cultivation and use of marijuana, even where permitted by state law, as part of its comprehensive regulation of the interstate drug market. In United States v. Comstock (2010), the Court held that the clause authorizes Congress to provide for civil commitment of mentally ill, sexually dangerous federal prisoners beyond their release dates. The clause has limits. It only applies to carrying out powers that are otherwise granted to the federal government. It does not give Congress an independent power to legislate on any subject. In National Federation of Independent Business v. Sebelius (2012), the Court held that the clause could not be used to compel individuals to purchase health insurance, because that would not be a proper means of regulating interstate commerce. The clause's scope remains a subject of debate, with some arguing for a narrow reading that requires a tight connection between the law and an enumerated power, and others favoring a broader reading that allows Congress to adapt to changing circumstances.

Original meaning

The original meaning of the Necessary and Proper Clause was debated during the ratification of the Constitution. Supporters, such as Alexander Hamilton in The Federalist No. 33, argued that the clause was merely declaratory, stating a principle that was already implied in the grant of legislative powers. Hamilton wrote, 'What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution?' Similarly, James Madison in The Federalist No. 44 defended the clause as expressing the axiom that 'wherever the end is required, the means are authorized.' Opponents, such as Brutus and Centinel, feared that the clause would give Congress unlimited power. Brutus warned in Brutus No. 1 that the clause 'may receive a construction to justify the passing almost any law' and could lead to the consolidation of the states into one general government. Centinel argued that the clause would allow Congress to 'stamp with the sanction of the constitution every possible law.' During the debate over the national bank in 1791, James Madison, who had earlier defended the clause, argued that it should be limited to means necessary to the end and incident to the specified powers, not giving 'unlimited discretion to Congress.' Thomas Jefferson similarly argued that 'necessary' meant truly necessary, not merely convenient, and that a bank was not necessary for carrying out the enumerated powers. These early disagreements set the stage for the ongoing debate over the clause's scope.
  • “What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS?” Alexander Hamilton, The Federalist No. 33 (1788-01-03)
  • “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.” James Madison, The Federalist No. 44 (1788-01-25)
  • “How far the clause in the 8th section of the 1st article may operate to do away all idea of confederated states, and to effect an entire consolidation of the whole into one general government, it is impossible to say. The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law.” Brutus (attributed to Robert Yates), Brutus, No. 1 (1787-10-18)
  • “But the convention has superadded another power, by which the congress may stamp with the sanction of the constitution every possible law;” Centinel (attributed to Samuel Bryan), Centinel, No. 5 (1787-12-04)
  • “Whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to Congress. Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers.” James Madison, James Madison, Speech on the Bank Bill, House of Representatives, February 2, 1791 (1791-02-02)
  • “But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorised by this phrase. It has been much urged that a bank will give great facility, or convenience in the collection of taxes. Suppose this were true: yet the constitution allows only the means which are "necessary" not those which are merely "convenient" for effecting the enumerated powers.” Thomas Jefferson, Thomas Jefferson, Opinion on the Constitutionality of the Bill for Establishing a National Bank (1791-02-15)

How the Supreme Court has read it

  1. McCulloch v. Maryland, 17 U.S. 316 (1819)

    The Court held that Congress had implied power under the Necessary and Proper Clause to charter a national bank, and that Maryland could not tax the bank because federal law is supreme. Chief Justice Marshall read the enumerated powers in light of the Constitution's structure and purposes, observing that 'it is a constitution we are expounding.'

  2. Missouri v. Holland, 252 U.S. 416 (1920)

    The Court upheld the Migratory Bird Treaty Act, holding that a valid treaty may support federal legislation that might otherwise exceed Congress's enumerated powers. Justice Holmes's majority stated that constitutional words must be read in light of 'our whole experience' and not merely what was said a century earlier.

  3. Gonzales v. Raich, 545 U.S. 1 (2005)

    The Court held that Congress may prohibit the local cultivation and use of marijuana, even where permitted by state law, as part of its comprehensive regulation of the interstate drug market. Justice Stevens's majority relied on Wickard's aggregation principle; Justice Scalia concurred based on the Necessary and Proper Clause; Justices O'Connor and Thomas dissented, Thomas invoking the original meaning of 'commerce.'

  4. United States v. Comstock, 560 U.S. 126 (2010)

    The Court held that the Necessary and Proper Clause authorizes Congress to provide for civil commitment of mentally ill, sexually dangerous federal prisoners beyond their release dates.

  5. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)

    The Court held that the Affordable Care Act's individual mandate exceeded the commerce and necessary-and-proper powers but could be sustained as a tax, and that threatening states with loss of all existing Medicaid funds to compel the Medicaid expansion was unconstitutionally coercive. Chief Justice Roberts's controlling opinion distinguished regulating activity from compelling it; Justice Ginsburg's partial dissent took a functional view of the national health-care market; the joint dissent would have struck down the entire Act.

Two schools of interpretation

Originalist / textualist reading

Originalists and textualists read the Necessary and Proper Clause as a grant of authority to Congress to choose the means to carry out its enumerated powers, but only those means that are truly 'necessary' and 'proper.' They emphasize that the clause is not an independent grant of power but is tied to the enumerated powers that precede it. Originalists look to the original public meaning of the words, arguing that 'necessary' means something like 'essential' or 'indispensable,' not merely convenient. They also stress the importance of federalism and the limited nature of federal power, as expressed in the Tenth Amendment. In their view, the clause should not be used to expand federal authority beyond what the Constitution's text and structure allow. They often point to the writings of Madison and Jefferson, who argued for a narrow reading, and to the Anti-Federalist warnings about the clause's potential for abuse. Originalists would likely reject broad interpretations that allow Congress to legislate on matters not directly tied to an enumerated power, as seen in the dissents in cases like Gonzales v. Raich.

Living-constitutionalist reading

Living constitutionalists and pragmatists read the Necessary and Proper Clause as a flexible grant of authority that allows Congress to adapt to changing circumstances and to address national problems in a practical way. They emphasize that the Constitution is a framework for governance, not a rigid code, and that the clause was designed to give Congress the means to carry out its responsibilities effectively. They point to Chief Justice Marshall's observation in McCulloch v. Maryland that 'it is a constitution we are expounding,' and to Justice Holmes's statement in Missouri v. Holland that constitutional words must be read in light of 'our whole experience.' Living constitutionalists argue that the clause should be interpreted broadly to allow Congress to address modern issues, even if those issues were not contemplated by the Founders. They view the clause as a necessary part of a functional national government, and they are more willing to defer to Congress's judgment about what means are necessary and proper, as long as there is a rational connection to an enumerated power. They would support the Court's decisions in cases like Gonzales v. Raich and United States v. Comstock, which upheld federal laws that address contemporary problems.

Open questions

The scope of the Necessary and Proper Clause remains unsettled in several respects. One open question is the precise meaning of 'necessary'—whether it requires a tight connection to an enumerated power or allows for a broader range of means. Another is the extent to which the clause can be used to support laws that regulate activities that are not themselves commerce but that affect interstate commerce in the aggregate. The relationship between the clause and the Tenth Amendment, and the limits it places on federal power, also continue to be debated. Additionally, the application of the clause to treaties, as in Missouri v. Holland, and to other areas of federal authority, remains a subject of ongoing judicial and scholarly discussion.

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Values for America Constitution Explorer, https://www.valuesforamerica.com/constitution (text: National Archives transcription, public domain), Article I, Section 8, Clause 18, https://www.valuesforamerica.com/constitution/article-1/section-8/clause-18

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