Myth #17: The Necessary and Proper Clause allows the federal government to pass any law it deems necessary and proper

This is the Seventeenth Myth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

The last thing the Founding Fathers wanted to do was give the federal government free reign to do whatever it wanted. The limiting principles of the U.S. Constitution are well defined, and the original intent is clear once one delves into the writings, and cultural definitions, of the time.

The Founding Fathers understood that a central government, like the one they were creating, will do whatever it can to expand into a big government not much unlike the one in Britain they had just won independence from. However, without a central government, the union of states that had previously existed under the Articles of Confederation would be unable to defend themselves against foreign enemies, or hold together the union which was under the onslaught of internal strife.

The U.S. government under the Articles of Confederation proved to be too weak of a system. In the face of potential foreign invaders, and insurrections within America's borders rising due to unrest and various conflicts, the Founding Fathers realized they required a stronger system that could provide for the common defense, and ensure domestic tranquility. The founders did not need a lamb, they needed a lion. That lion, however, carried with it bigger teeth and stronger limbs. The fear, then, was that if not restrained the lion would eat the people. The limiting principles of the U.S. Constitution are those restraints designed to keep the stronger, centralized, governmental system caged so as not to become an oppressive system of governance.

In Article I, Section 8, Clause 18 the “necessary and proper” clause was designed to be a part of further limiting the Federal Government. The purpose behind the clause was to ensure the Congress did not make laws at will, but limited their law making to laws authorized by the Constitution that were deemed to only be necessary and proper.

The clause reads:

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.

There is a difference between "necessary," and "convenient." There is an even larger gap between "constitutional," and "unconstitutional." The language of the Necessary and Proper Clause makes it clear that the purpose of the laws must be "necessary and proper" to carrying out the authorities granted to the federal government by the Constitution.

Let's take, for example, Obamacare. The proponents believe that government funded health care is necessary in order to bring down the costs of health care. The fact that the opposite is true is not the point. The fact that the supporters of Obamacare "believe" the law is necessary is all they care about. But, in accordance with the Elastic Clause (as it is sometimes called), one must ask if the Obamacare law is necessary and proper for the federal government to carry out the powers vested to them by the Constitution?

The key is the constitutionality of the law in the first place, which drags a number of other disputed clauses kicking and screaming into the debate.

In the Constitution, there is no authority granted giving the federal government the power to regulate, administer, or fund health care programs. Therefore, Obamacare could not be necessary to carry out the federal government's constitutional authorities if the law is not constitutional in the first place.

The argument will then turn to the Commerce Clause. The problem is, the Commerce Clause does not authorize the federal government to be involved in health care, either. The Commerce Clause was written with the specific intention of giving the federal government the authority to act as a mediator between the States whenever their disputes hampered the flow of interstate commerce. Obamacare clearly does not fit that definition.

Why, then, is the necessary and proper clause included in the Constitution if it doesn't give the federal government the power to do anything it feels to be necessary and proper, especially if the federal government is limited to specifically only carrying out laws in accordance with what is expressly granted by the Constitution?

The clause enables the federal government to do the things necessary and proper for the purpose of carrying out the express powers granted to it by the Constitution. For example, the Constitution grants to the Congress the authority to "establish post offices and post roads" (Article I, Section 8, Clause 7). But that is all the Constitution says about it. The Constitution does not specifically mention the necessity of buying land for those buildings, or hiring construction labor to build them. Further more, the Constitution also does not say anything about hiring mail carriers, using the sorting machines necessary for carrying out the functions of the post office, or buying trucks to deliver the mail. Does this mean the federal government is not authorized to do these things? Not at all, because buying the land, building the buildings, hiring the people, purchasing the machines, and buying the trucks are all necessary for the purpose of carrying out Article I, Section 8, Clause 7.

In order for the federal government to be authorized under the Necessary and Proper Clause, the law must be directly applicable to the main, enumerated power, and the law must be lesser than the main power. Without the Necessary and Proper Clause, the federal government would be unable to carry out many of its enumerated powers because the federal government would be limited to only those things expressly granted.

During the Constitutional Convention, the inclusion of the clause sparked great debate. Anti-Federalists argued that the clause would be used by the federal government to give itself boundless power, but the Federalists argued that the clause would only permit execution of power already granted by the Constitution. Alexander Hamilton and James Madison indicated that without the Necessary and Proper Clause, the federal government would be unable to carry out many of the enumerated powers granted to it by the States, which would in turn make the constitution a "dead letter".

Patrick Henry opposed the clause, saying at the Virginia Ratifying Convention that the Necessary and Proper Clause would lead to limitless federal power that would inevitably menace civil liberties.

-- Political Pistachio Conservative News and Commentary

Madison’s Notes Constitutional Convention - Avalon Project, Yale University

Misunderstanding Necessary and Proper - Tenth Amendment Center

Necessary and Proper - Randy Barnett, UCLA Law Review