The Necessary and Proper Clause

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.

—Gary S. Lawson

Introduction

The first seventeen clauses of Article I, Section 8 enumerate legislative powers vested in Congress. (See Essay Nos. 39–65.) The Constitution sets forth additional congressional powers in Articles IV and V. Other provisions vest power in the President, federal judges, individual houses of Congress, and (occasionally) individual federal actors such as the Chief Justice or the Vice President. The Necessary and Proper Clause, also known as the Sweeping Clause, appears at the conclusion of Article I, Section 8. It authorizes and sets the criteria for laws that carry into effect all these other federal powers. Over time, the Supreme Court has interpreted the Necessary and Proper Clause to support a sweeping expansion of federal power.

History Before 1787

The Necessary and Proper Clause had no direct antecedents in other governmental instruments. “Necessary and proper” appeared in only one pre-Convention state constitution. A provision of the Massachusetts constitution of 1780 authorized the legislature “to adopt such other measures as may be necessary and proper for insuring continuity of the government . . .” in the event of invasion.¹

Article II of the Articles of Confederation had something of a mirror image of the Necessary and Proper Clause: “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” In other words, Congress would have a power only if it was expressly delegated to the national government; otherwise, that power was retained by the states. The Confederation Congress did not have any implied or incidental powers. In Federalist No. 44, Alexander Hamilton observed that Congress had “constru[ed] the term ‘expressly’ with so much rigour, as to disarm the government of all real authority whatever.”

The Constitutional Convention

At the Constitutional Convention, the Necessary and Proper Clause emerged, seemingly out of thin air, in a draft from the Committee of Detail. This committee included four prominent lawyers, Oliver Ellsworth of Connecticut, Edmund Randolph of Virginia, John Rutledge of South Carolina, and James Wilson of Pennsylvania, as well as a prominent businessman, Nathaniel Gorham of Massachusetts. This draft, which was written in Wilson’s handwriting with certain parts crossed out, reads: “and to make all Laws that shall be necessary and proper for carrying into full and complete 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.”²

The Committee of Detail’s report was delivered to the Convention on August 6. The text provided that Congress would have the power “to make all laws that 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.”³ The Committee omitted the first crossed-out portion (“full and complete”) but retained the second (“the foregoing Powers”).

The Convention considered the clause on August 20.⁴ However, there was no discussion as to why this provision was introduced. In Federalist No. 33, Hamilton would write that the clause was added out of “great[] caution, and to guard against . . . curtail[ing] and evad[ing] the legitimate authorities of the union.”

The only debate at the Convention about the Necessary and Proper Clause concerned whether Congress had the power to create and define federal offices by statute.⁵ James Madison of Virginia would have granted Congress the express power to “establish all offices.”⁶ He thought it “liable to cavil” that this power was not already included in the Constitution. Gouverneur Morris, James Wilson, and others disagreed. They “urged that the amendment could not be necessary.” Madison’s motion failed by a vote of nine to two. The Committee of Detail’s proposal was adopted unanimously without further debate.

No further changes were made by the Committee of Style.⁷ On September 15, toward the end of the Convention, Elbridge Gerry of Massachusetts “stated the objections which determined him to withhold his name from the Constitution.”⁸ Among other concerns, he warned that the “rights of the Citizens were . . . rendered insecure . . . by the general power of the Legislature to make what laws they may please to call necessary and proper.”⁹

The Necessary and Proper Clause was adopted.¹⁰ Another provision of the Constitution used somewhat similar language: The President shall “recommend to [Congress’s] consideration such Measures as he shall judge necessary and expedient.”¹¹ (See Essay No. 111.)

The Ratification Debates

The Necessary and Proper Clause would prove to be extremely controversial during the ratification debates. Opponents dubbed the clause the “sweeping clause” or “general clause.” An Anti-Federalist from New England derided it as the “omnipotent clause.”¹²

Many Anti-Federalists argued that the clause imposed no limits on the federal government’s powers. In practice, only Congress would be the judge of what the clause permits.¹³ This clause, critics claimed, subverted the principle of enumerated powers by giving limitless general legislative competence to Congress. Centinel asked, “Does not this sweeping clause subject every thing to the controul of Congress?”¹⁴ He added that Congress could use this “unlimited power” to “carry the coup de grace to the state governments, to swallow them up in the grand vortex of general empire.”¹⁵ At the Virginia ratifying convention, Patrick Henry warned that the “sweeping clause will fully enable [Congress] to do what they please.”¹⁶ Brutus charged that this power could “entirely . . . abolish the state legislatures” and “reduce this country to one single government.”¹⁷ For example, Congress could “repeal” any state tax “because it may prevent the collection of a [federal] tax which [Congress] may think proper and necessary to lay. . . .”¹⁸

Federalists sharply disagreed.¹⁹ In Federalist No. 44, Hamilton wrote that “[f]ew parts of the constitution have been assailed with more intemperance than” the Sweeping Clause. Yet, “on a fair investigation of it . . . no part can appear more completely invulnerable.” Indeed, “[w]ithout the substance of this power, the whole constitution would be a dead letter.” In Federalist No. 33, Hamilton responded to Brutus’s attack on “the unfortunate and calumniated provision.” Hamilton said that the purpose of the Sweeping Clause “is expressly to execute these powers” enumerated in the Constitution, and “[i]f there be any thing exceptionable, it must be sought for in the specific powers, upon which this general declaration is predicated.”

Federalists also defended the Sweeping Clause at the ratifying conventions. In Pennsylvania, Wilson stated that this provision is “saying no more than that the powers we have already particularly given, shall be effectually carried into execution.”²⁰ In Virginia, Madison said the clause was “at most but explanatory” as it “only extended to the enumerated powers.”²¹ James Monroe argued that this “formidable clause” was “only inserted for greater caution, and to prevent the possibility of encroaching upon the powers of Congress.”²²

There is further textual support for the Federalist position. Five power-granting provisions of the Constitution use discretionary language like “shall think,” “they think,” “shall judge,” and “shall deem.” (See Essay Nos. 67, 108, 110, 113, 148.) These provisions “expressly bestow discretion on the pertinent actors to determine the necessity, propriety, or expediency of prescribed action.”²³ The Necessary and Proper Clause, by contrast, does not contain such discretionary language. Rather, it requires that laws objectively “shall be necessary and proper for carrying into Execution” federal powers. Hamilton observed in Federalist No. 33 that “in the first instance” Congress is to “judge of the necessity and propriety of the laws to be passed for executing the powers of the union.” George Nicholas of Virginia insisted that if Congress “exceed these powers, the judiciary will declare it void, or else the people will have a right to declare it void.”²⁴

A Fiduciary Clause

The meaning and purpose of the Necessary and Proper Clause would have been reasonably clear to an eighteenth-century citizen. The enumeration of powers in the Constitution is similar to the enumeration of powers that one would find in an eighteenth-century private agency instrument or corporate charter. That is not surprising, as the Founders viewed the Constitution as a fiduciary instrument. James Iredell of North Carolina said the Constitution “may be considered as a great power of attorney, under which no power can be exercised but what is expressly given.”²⁵ The principal (“We the People”) grants power to official agents (the government).²⁶

Eighteenth-century agency law understood that enumerated grants of power to agents generally carried implied powers in their wake: the enumerated (principal) granted powers were presumptively accompanied by implied (incidental) powers that were needed to effectuate the principal powers. Sir William Blackstone wrote that “[a] subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant.”²⁷ Authors of agency instruments could draft around this background rule to change the baseline of incidental powers. The Articles of Confederation directly ruled out implied powers by specifying that “[e]ach state retains . . . every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”²⁸ Private agency instruments of the time calibrated the power of agents by referring to “necessary,” “proper,” or (most restrictively) “necessary and proper” incidental powers.²⁹

The clause was written by the Committee of Detail, whose four lawyers and a businessman would all have been familiar with agency law, and ratified by a public accustomed to serving as or employing agents in a wide range of everyday affairs. The Framers and ratifiers would likely have understood the Necessary and Proper Clause as a provision clarifying the scope of incidental powers accompanying the grants of principal (enumerated) federal powers.³⁰

So understood, the clause serves two significant purposes. First, it facilitates organization of the government. It empowers Congress to organize the judicial department and create executive offices. The Framers rejected Madison’s motion at the Convention to make explicit that the clause authorized the creation of federal offices. Others contended that such a specification “could not be necessary.”³¹ Second, and more fundamentally, the clause confirms, defines, and limits the incidental powers that impliedly accompanied other grants of power. The scope of these incidental or implied powers has been a subject of dispute ever since the Founding era.

Accordingly, as a matter of original meaning, every law enacted under the Necessary and Proper Clause must be (1) incidental to a principal power; (2) “for carrying into Execution” a principal power; (3) “necessary” for that purpose; and (4) “proper” for that purpose.

Incidental to a Principal Power

Laws enacted under the Necessary and Proper Clause must be incidental to a principal power. In McCulloch v. Maryland (1819), Chief Justice John Marshall emphasized this aspect of the clause.³² McCulloch concerned whether the Necessary and Proper Clause authorized Congress to incorporate a national bank. Congress lacks a principal, or enumerated, power to create a corporation or bank. Marshall explained why the power to incorporate a bank was an incidental rather than a principal power. Marshall identified principal powers, “like the power of making war or levying taxes or of regulating commerce” which were “great substantive and independent power[s] which cannot be implied as incidental to other powers.”³³ Rather, the implied power of incorporation “must be considered as a means not less usual, not of higher dignity.”³⁴ But if an incidental power is of the same “dignity” as the principal enumerated powers, then it cannot be implied under the Necessary and Proper Clause, no matter how convenient, useful, or even indispensable it might be for effectuating a principal power.³⁵

This basic distinction between incidental and principal powers largely (and mysteriously) disappeared from the law for nearly two centuries.³⁶ Yet, it reemerged to play a key role in Chief Justice John Roberts’ controlling opinion in NFIB v. Sebelius (2012).³⁷ NFIB found that the Affordable Care Act’s “individual mandate” to purchase government-approved health insurance was not a valid exercise of Congress’s powers under the Necessary and Proper Clause, but it could be upheld as an exercise of the taxing power. Still, the Court’s discussion of the Necessary and Proper Clause was a necessary step to the judgment. Relying on McCulloch, Roberts wrote that the clause “vests Congress with authority to enact provisions ‘incidental to the [enumerated] power’” but “does not license the exercise of any ‘great substantive and independent power[s]’ beyond those specifically enumerated.”³⁸ Roberts concluded that a governmental power to force people to buy a product was equal in dignity to the principal powers and thus could not be considered “‘incidental’ to the exercise of the commerce power” or any other power.³⁹

This revival of the distinction between incidental and principal powers generated a rash of academic criticism regarding the difficulty of drawing that distinction.⁴⁰ One response is that “[c]ourts, and the drafters of agency instruments, had been distinguishing principals from incidents for centuries.”⁴¹ This history left a rich body of analogues on which to draw.⁴²

For Carrying into Execution

Any law enacted under the Necessary and Proper Clause must be “for carrying into Execution” some other federal power. The clause authorizes laws to help other federal actors carry out their functions, not to hinder them.⁴³ For example, Congress could not, under the guise of this clause, tell the President whom to pardon.

Some cases suggest that Congress can also pass laws to make the exercise of federal powers more effective,⁴⁴ but this conclusion has been challenged by some Justices and scholars.⁴⁵

Necessary

Incidental laws that carry into execution federal powers must be “necessary” for that purpose. The requirement of necessity entails some degree of causal connection between the implementing law and the implemented power. The degree to which that required causal connection has been a contentious issue for more than two centuries.

In McCulloch, the State of Maryland argued that a “necessary” law must be indispensable to the achievement of a permissible governmental end.⁴⁶ Here, the state echoed Secretary of State Thomas Jefferson’s opinion regarding the Bank of the United States.⁴⁷ Treasury Secretary Alexander Hamilton’s opinion countered that necessity “often means no more than needful, requisite, incidental, useful, or conducive to.”⁴⁸ Representative James Madison took a middle ground. He described necessity as requiring “a definite connection between means and ends” in which the executory law and the executed power are linked “by some obvious and precise affinity.”⁴⁹ In 1791, Madison disapprovingly paraphrased the Hamiltonian understanding of necessity as meaning anything that “might be conceived to be conducive” to a desired end.⁵⁰

In McCulloch, Chief Justice Marshall adopted Hamilton’s formulation almost verbatim.⁵¹ Marshall had done the same fourteen years earlier in United States v. Fisher (1805).⁵² Elsewhere in McCulloch, however, Marshall used slightly less capacious language: “Let the end be legitimate, 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 consist with the letter and spirit of the constitution, are constitutional.”⁵³

Modern cases have interpreted McCulloch and two centuries of subsequent precedents quite generously in line with Hamilton’s formulation. Laws are valid under the Necessary and Proper Clause when they accomplish valid legislative ends “by rational means.”⁵⁴ Such laws are also valid as “a means that is rationally related to the implementation of a constitutionally enumerated power.”⁵⁵ In United States v. Comstock (2010), Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas expressed some measure of unease with this “rational basis” formulation of the required means-ends connection.⁵⁶ Originalist scholarship also raises serious doubts about whether Hamilton and Marshall accurately captured either the ordinary or the legal meaning of “necessary.”⁵⁷ Nonetheless, the Court has never declared unconstitutional a congressional law on the ground that it was not “necessary” for effectuating federal powers.

Proper

Finally, laws under the Necessary and Proper Clause must be “proper” for executing federal powers. In McCulloch, Daniel Webster argued that “necessary” and “proper” have the same meaning.⁵⁸ A scholar has suggested that “necessary and proper” might be a unitary phrase known as a “hendiadys” rather than two distinct terms.⁵⁹ In NFIB v. Sebelius, however, five Justices treated the requirement of propriety as separate from and in addition to the requirement of necessity.⁶⁰ There are both contextual and intratextual reasons to think NFIB was correct.⁶¹

The modern Supreme Court has not elaborated on this requirement of propriety in detail. However, several late twentieth-century cases held that laws were not “proper” if they violated principles of federalism. For example, a federal law that compelled state officials to enforce federal law was not proper.⁶² Another federal law that wrongly used Article I powers to waive, or abrogate, state sovereign immunity, was not proper.⁶³ In NFIB v. Sebelius, four Justices clarified that “the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.”⁶⁴ A fifth member, Chief Justice Roberts, noted that laws are not “proper” when they “undermine the structure of government established by the Constitution.”⁶⁵ These statements are consistent with scholarship arguing that “proper” laws do “not usurp or expand the constitutional powers of any federal institutions or infringe on the retained rights of the states or of individuals.”⁶⁶

Open Questions

• The Sweeping Clause refers to the “Government of the United States, or in any Department or Officer thereof.” What specific elements of the federal government are covered by this language?⁶⁷

1. Mass. Const. of 1780, art. LXXXIII. ↩︎
2. 2 Farrand’s 168. ↩︎
3. Id. at 182. ↩︎
4. Id. at 344–45. ↩︎
5. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 435 n.408 (2023). ↩︎
6. 2 Farrand’s 345. ↩︎
7. Id. at 570, 596. ↩︎
8. Id. at 632. ↩︎
9. Id. at 633. ↩︎
10. Id. at 656. ↩︎
11. Art. II, § 3. ↩︎
12. Storing 4.13.28. ↩︎
13. Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 282–83 (1993). ↩︎
14. Storing 2.7.37. ↩︎
15. Id. at 2.7.96. ↩︎
16. 3 Elliot’s 437. ↩︎
17. Storing 2.9.8–9. ↩︎
18. Id. at 2.9.8. ↩︎
19. Lawson & Granger, supra at 281–82. ↩︎
20. 2 Elliot’s 449. ↩︎
21. 3 Elliot’s 438, 455. ↩︎
22. Id. at 307. ↩︎
23. Lawson & Granger, supra at 277. ↩︎
24. 3 Elliot’s 443. ↩︎
25. 4 Elliot’s 148. ↩︎
26. Gary Lawson & Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution (2017); Gary Lawson & Guy Seidman, An Enquiry Concerning Constitutional Understanding, 17 Geo. J.L. & Pub. Pol’y 491 (2019); Ethan J. Leib & Jed Handelsman Shugerman, Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation, 17 Geo. J.L. & Pub. Pol’y 463, 463–69 (2019). ↩︎
27. 2 Blackstone 347. ↩︎
28. Articles of Confederation, art. II (emphasis added). ↩︎
29. Robert G. Natelson, The Legal Origins of the Necessary and Proper Clause, in Gary Lawson et al., The Origins of the Necessary and Proper Clause 52 (2010). ↩︎
30. Robert G. Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Rsrv. L. Rev. 243 (2004). ↩︎
31. 2 Farrand’s 345. ↩︎
32. 17 U.S. (4 Wheat.) 316 (1819). ↩︎
33. Id. at 417. ↩︎
34. Id. at 421. ↩︎
35. Id. at 421–22. ↩︎
36. Lawson & Seidman, “Great Power of Attorney,” supra at 90–91. ↩︎
37. 567 U.S. 519 (2012). ↩︎
38. Id. at 559 (quoting McCulloch, 17 U.S. (4 Wheat.) at 418, 421). ↩︎
39. Id. at 560. ↩︎
40. Lawson & Seidman, “Great Power of Attorney,” supra at 98. ↩︎
41. Id. at 99. ↩︎
42. Natelson, Legal Origins, supra at 62–63. ↩︎
43. David E. Engdahl, Intrinsic Limits of Congress’ Power Regarding the Judicial Branch, 1999 B.Y.U. L. Rev. 75, 170–74 (1999). ↩︎
44. Missouri v. Holland, 252 U.S. 416 (1920); Shreveport Rate Cases, 234 U.S. 342, 351–55 (1914). ↩︎
45. Bond v. United States, 572 U.S. 844, 876 (2014) (Scalia, J., concurring in the judgment); Steven Gow Calabresi & Gary Lawson, The U.S. Constitution: Creation, Reconstruction, the Progressives, and the Modern Era 841–42 (2020); Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1882–88 (2005). ↩︎
46. 17 U.S. (4 Wheat.) at 367. ↩︎
47. Thomas Jefferson, Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), https://perma.cc/5C66-GECC. ↩︎
48. Alexander Hamilton, Final Version of an Opinion on the Constitutionality of an Act to Establish a Bank (Feb. 23, 1791), https://perma.cc/7NDR-HAK9. ↩︎
49. Letter from James Madison to Spencer Roane (Sept. 2, 1819), https://perma.cc/X4SE-DYAT. ↩︎
50. 2 Annals of Cong. 1948 (1791). ↩︎
51. 17 U.S. (4 Wheat.) at 413–14. ↩︎
52. 6 U.S. (2 Cranch) 358, 396 (1805). ↩︎
53. 17 U.S. (4 Wheat.) at 421. ↩︎
54. Sabri v. United States, 541 U.S. 600, 605 (2004). ↩︎
55. United States v. Comstock, 560 U.S. 126, 134 (2010). ↩︎
56. Id. at 151–52 (Kennedy, J., concurring); id. at 158 (Alito, J., concurring); id. at 160–61 (Thomas, J., and Scalia, J., dissenting). ↩︎
57. Steven Gow Calabresi, Elise Kostial & Gary Lawson, What McCulloch. v. Maryland Got Wrong: The Original Meaning of “Necessary” Is Not “Useful,” “Convenient,” or “Rational,” 75 Baylor L. Rev. 1 (2023). ↩︎
58. 17 U.S. at 324. ↩︎
59. Samuel L. Bray, Necessary AND Proper and Cruel AND Unusual: Hendiadys in the Constitution, 102 Va. L. Rev. 687, 689 (2016). ↩︎
60. 567 U.S. at 559. ↩︎
61. Calabresi, Kostial, & Lawson, supra at 31 n.143; Gary Lawson, Discretion as Delegation: The “Proper” Understanding of the Nondelegation Doctrine, 73 Geo. Wash. L. Rev. 235, 250–55 (2005). ↩︎
62. Printz v. United States, 512 U.S. 898, 923–24 (1997). ↩︎
63. Alden v. Maine, 527 U.S. 706, 732–33 (1999). ↩︎
64. 567 U.S. at 653 (Scalia, J., Kennedy, J., Thomas, J., and Alito, J., dissenting). ↩︎
65. Id. at 559. ↩︎
66. Lawson & Granger, supra at 271. ↩︎
67. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 403–17 (2022). ↩︎