Necessary and Proper Clause

4 Key excerpts on "Necessary and Proper Clause"

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  eBook - ePub

  A Companion to the United States Constitution and Its Amendments

  • John R. Vile(Author)
  • 2021(Publication Date)
  • Praeger

    (Publisher)

  McCulloch v. Maryland (1819), in which he and his colleagues upheld the constitutionality of a national bank. The Constitution did not specifically authorize such a bank, but the Washington administration had created one, and the administration of James Madison, who had initially opposed the bank, had later rechartered it after its first charter lapsed. Arguing that the bank was not an end in and of itself but a means to such ends, Marshall ruled that the Necessary and Proper Clause gave Congress a choice of means of implementing its powers as long as it chose means consistent with the powers that the Constitution granted to Congress and which it did not prohibit. Observing that the Constitution had not employed the term “absolutely,” as in other parts of the Constitution, to modify the words “necessary and proper,” Marshall argued that the Constitution outlined varying degrees of necessity and that experience had demonstrated the propriety of a national bank. Marshall also noted that the Founding Fathers had placed the Necessary and Proper Clause in a section of the Constitution, like Article I, Section 8, which granted, rather than limited, congressional powers.

  Scholars sometimes designate the sum of congressional enumerated and implied powers as “resulting powers.” Today’s Congress passes antipollution laws, appropriates funds for building highways, ratifies consumer legislation, promotes agriculture, bails out banks and industries, and regulates a variety of economic activities that the Constitution does not specifically mention. Congress typically justifies such laws by tying them to its powers over interstate commerce, taxing and spending, and warmaking.

  Congressional Investigations

  Congressional committees conduct hearings and investigations. Without such investigative power, Congress would lack information to legislate, oversee the operation of its progress and the conduct of government officials, and obtain necessary information about nominees to federal offices. Although the Constitution does not specifically delineate this power, courts have accepted it as an implied power.

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  eBook - ePub

  American Constitutional Law 8E, 2-VOL SET

  2-VOLUME SET

  • Ralph A. Rossum(Author)
  • 0(Publication Date)
  • Routledge

    (Publisher)

  thatraised in the east conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction, (unless the words imperiously require it), which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed.

  It is not denied, that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied that the government has its choice of means; or, that it may employ the most convenient means, if, to employ them, it be necessary to erect a corporation.

  But the constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making "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 thereof."

  The counsel for the State of Maryland have urged various arguments, to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers... .

  The argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers conferred on the government, but such only as may be "necessary and proper" for carrying them into execution. The word "necessary

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  The Civilian-Military Divide

  Obstacles to the Integration of Intelligence in the United States

  • Louise Stanton(Author)
  • 2009(Publication Date)
  • Praeger

    (Publisher)

  Article I, Section 10, cl. 3 states: No State shall, without the consent of Congress . . . keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. Article I concerns the legislative branch, Congress. Generally, the express or enumerated war powers of the Congress are the power to declare war and to maintain the armed forces. In addition, the Spending Clause of Congress’s enumerated powers gives Congress the power to ‘‘provide for the common defense and general welfare of the United States’’ and several other express powers related to war. 14 The power to declare war and to maintain the armed forces includes the implied power to prepare for war through the Necessary and Proper Clause, which states that Congress has the power ‘‘to make all laws which shall be necessary and proper for carrying into execu- tion 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.’’ 15 The placement of the clause among the powers of Congress, rather than in the limits on Congress, has led the Court to rely upon this U.S. Law 43 clause and hold that the express powers of Congress are to be read broadly in order to accomplish the goal of making the government work. 16 The most significant laws Congress has made in the area of the war powers are the War Powers Resolution, the National Emergencies Act, and the National Security Act of 1947. In the area of declaring war, the Congress passed the War Powers Resolution 17 to restrict presidential com- mitment of armed forces absent congressional authorization. Section 1541 states that the constitutional powers of the President as Com- mander-in-Chief to introduce U.S.

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  The Constitution of Empire

  Territorial Expansion and American Legal History

  • Gary Lawson, Guy Seidman(Authors)
  • 2008(Publication Date)
  • Yale University Press

    (Publisher)

  For that, the nation needs treaties: legally binding consensual arrangements between or among sovereigns. Suppose that the United States and France want to enter into an agreement providing for reciprocal duty-free entry of perfumes. Congress can pass a law exempting French perfumes from all American duties. But if Congress later changes that law, the French government would have no legal recourse. The French government could change its own domestic law, make diplomatic hay, begin a trade war, or even begin a shooting war, but the American action would not violate any legal norm. If, however, the arrangement is embodied in a treaty, then subsequent legislation contrary to the terms of the treaty would violate international law. Congress could still pass legislation in violation of the treaty that would be fully effective as a matter of domestic law. Such legislation would not be ‘‘unconstitutional.’’ But a treaty that ‘‘locks in’’ the agreement raises the cost of such legislation by whatever amount a violation of international law is considered or expected to entail. Similarly, a treaty, and only a treaty, can secure an internationally binding agreement from a foreign sovereign. Treaties are thus an essential means for implementing national powers in the international arena. The Sweeping Clause permits Congress to execute national powers domestically (provided that such executory laws are ‘‘neces-sary and proper’’). The Treaty Clause similarly permits the United States, through the President and the Senate, to implement national powers inter-nationally by locking in intergovernmental agreements. At least, that is the most minimal function of the Treaty Clause. It is another matter altogether to say that it is the maximal or only function. Thomas Jefferson took that next step. Jefferson was, at least much of the time, deeply suspicious of the federal treaty power, in terms of both its constitutional scope and the wisdom of its frequent exercise.

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