The Reach of Congressional Power: Introduction and "The Necessary and Proper Clause"
The Issues:  What does it mean to be a government of enumerated powers? 
How should Article I's "Necessary and Proper Clause" be construed?
The United States is a government of enumerated powers.  Congress, and the other two branches of the federal government, can only exercise those powers given in the Constitution.

The powers of Congress are enumerated in several places in the Constitution.  The most important listing of congressional powers appears in Article I, Section 8 (see left) which identifies in seventeen paragraphs many important powers of Congress.  The last paragraph of Article I, Section 8 grants to Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers"--the "Necessary and Proper Clause."  The proper interpretation of the Necessary and Proper Clause was the subject of a heated debate between such important figures as Alexander Hamilton (who argued that the clause should be read broadly to authorize the exercise of many implied powers) and Thomas Jefferson (who argued that "necessary" really meant necessary).  Hamilton's more flexible interpretation makes possible a strong central government, whereas Jefferson's narrower interpretation strengthens states' rights.

The Bank of the United States in Philadelphia.  Alexander Hamilton argued that the Constitution's implied powers authorized its creation.

The famous case of McCulloch vs Maryland considered whether Article I, Section 8 gave Congress the power to create a national bank and, if so, whether the state of Maryland could tax it.  For nine days, Daniel Webster and former Constitutional Convention delegate Luther Martin jargued the case before the justices of the Supreme Court.  Chief Justice John Marshall, writing for the Court, found the Necessary and Proper Clause gave Congress the flexibility to create the bank as an aid to carrying out its enumerated borrowing and taxing powers and that Maryland's taxation of the bank violated the Supremacy Clause.  

Attorneys for McCulloch (Daniel Webster, left) and Maryland (Luther Martin, right) in McCulloch (or M'Culloch) vs Maryland

U. S. vs Gettysburg Elec. Ry. Co. (1896) considered whether Congress had the power to condemn a railroad's land in what was to be Gettysburg National Military Park.  Writing for the Court, Justice Peckham found that the power to condemn the railroad's land was implied by the powers of Congress to declare war and equip armies because creation of the park "tends to quicken and strenghten" the motives of the citizen to defend "the institutions of his country."

Gettysburg Train Station in 1888

Skipping forward more than a century to the modern era, we see the Court in U. S. v Comstock (2010) give an especially broad reading to the Necessary and Proper Clause.  In Comstock, the Court upheld a federal law that authorized the continuing detainment, under a civil commitment program, of potentially dangerous sexual offenders who had completed their prison terms.  The Court found the law "reasonably adapted" to a "legitimate" and constitutional end of government, and therefore to be constitutionally supported by the Necessary and Proper Clause.  Writing for the Court, Justice Breyer said the fact that the law was several steps removed from any of the enumerated powers of Article I was not fatal.  Justices Thomas and Scalia dissented, arguing that the law "executes no enumerated power," and was therefore unconstitutional.

Implied powers and interpretation of the "Necessary and Proper Clause"
McCulloch vs Maryland (1819)
U. S. vs Gettysburg Elec. Co. (1896)
United States vs Comstock (2010)

Other Pages Relating to the 
Powers of Congress

The Federal Commerce Power

Federal Powers to Tax, to Spend, and to Regulate Federal Property

Power to enforce the protections of the 13th, 14th, and 15th Amendments

10th and 11th Amendment Limitations on the Powers of Congress 

The Commerce Clause as a Limitation on State Power 

Key Constitutional Grants 
of Powers to Congress

Article I, Section. 8. 

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; 

To borrow Money on the credit of the United States; 

 To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; 

 To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; 

 To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; 

 To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; 

 To establish Post Offices and post Roads; 

 To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

 To constitute Tribunals inferior to the supreme Court; 

 To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; 

 To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; 

 To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; 

 To provide and maintain a Navy; 

 To make Rules for the Government and Regulation of the land and naval Forces; 

 To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 

 To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; 

 To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for  the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

 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.


1. The alternative to a government of enumerated powers is, of course, a government of unenumerated powers.  The Constitution might have said "Congress shall have all powers not specifically prohibited elsewhere in this Constitution."  What are the advantages and disadvantages of each system?
2.  It would be silly to say, for example, the "power to establish post offices" did not include the power to print postage stamps or pay mail carriers.  But does it also include the power to advertise the joys of stamp collecting on television?  How broadly or narrowly should the enumerated powers be read?  Should the "Necessary and Proper Clause" be interpreted as authorizing actions rationally related to one of the listed powers, or only actions "necessary" to carrying out a listed power?
3.  Thomas Jefferson had serious doubts as to whether the Constitution gave him the power to acquire land from France through the Louisiana Purchase, but he went ahead with the deal anyway.  Was the Louisiana Purchase constitutional?  What might be the constitutional source for the power to acquire lands?
4.  In McCulloch vs Maryland, Chief Justice Marshall notes that the Constitution is not a statute, and suggests that it should be read more liberally and flexibly than a statute so that it might serve the ages.  Do you find Marshall's argument about constitutional interpretation persuasive?
5.  Thomas Jefferson was none too pleased with the decision in McCulloch.  Jefferson said, "The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric."  What do you think about Jefferson's characterization?
6.  In Gettysburg, the Court says that to justify an exercise of congressional power, "any number of powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred."  This is the so-called "implied powers doctrine."  Is the Court now moving in the direction of abandoning this doctrine and insisting upon more specific textual support to sustain exercises of federal power?
7.  What exactly was the enumerated power, if any, that the civil commitment program upheld in Comstock executes?  Do you think the program is too far removed from any of the enumerated powers to be unconstitutional?
8.  What implications does Comstock have for the debate about the constitutionality of the 2010 healthcare reform legislation?  Does the decision suggest that mentally unstable and uncurable jihadists being held at Guantanamo or elsewhere could, constitutionally, be kept in detention forever?

 Exploring Constitutional Conflicts Homepage