At the end of Section 8 of Article I of the U.S. Constitution, which enumerates the powers of Congress, the following clause appears: "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." This clause is the source of the doctrine of implied powers.
During President George Washington's administration, the fight between the Federalists and the Antifederalists took not only a political but also a constitutional turn. Federalists favored broad construction of the Constitution so as to maximize the powers of the new central government, while Antifederalists sought to minimize those powers. Both groups seized upon the idea of implied powers. Alexander Hamilton argued that the necessary-and-proper clause means that Congress is not strictly limited to the enumerated "foregoing powers" but also has any powers that can be reasonably implied therefrom. Thomas Jefferson argued, on the contrary, that Congress had the authority to enact only those laws both necessary and proper for the implementation of one of the enumerated powers. Ultimately, the Hamiltonian theory won out, because it made better sense in an evolving world.
Hamilton and Jefferson were arguing over the constitutionality of the law creating the first Bank of the United States. Several years later, the Supreme Court, under John Marshall's leadership, resolved the dispute by adopting Hamilton's view in a case involving the second Bank of the United States, the case of McCulloch v. Maryland (1819). In ruling that Maryland could not tax the second bank, Marshall had at the same time to hold that Congress had the authority to charter the bank in the first place. He did so by adopting Hamilton's arguments. Included among the powers explicitly granted to Congress in the Constitution were the power to lay and collect taxes, borrow money, regulate commerce, declare and conduct war, and raise and support armies and navies. The Chief Justice said that it was in the best interests of the nation that Congress should be entrusted with the means to carry out these delegated powers and that the bank was a convenient, useful, and appropriate instrument for doing so. Concluding with a rhetorical flourish, Marshall wrote: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are not prohibited, but consist with the letter and the spirit of the constitution, are constitutional."
Paradoxically, the Jeffersonian argument, if victorious, would have required greater judicial discretion, and thus greater judicial power than Marshall's view. It would have required courts to decide a means–ends question: Had Congress chosen a means that was necessary to the end in view and therefore a permissible means? Or had Congress chosen a means that was merely desirable or conducive to the end and therefore not permissible? As Daniel Webster argued in the McCulloch case, it would ill become a court to decide whether the bank corporation was the only possible means by which the currency power could be exercised; much more easily and modestly, it could decide whether there was a fair connection between the means and the ends.
Marshall's view arose out of his conviction that the Constitution was created for "an undefined and expanding future," the exigencies of which could not be foreseen by its framers; if such a document was to endure, the flexibility allowed by its own generality of wording and a liberal use of the implied powers doctrine by the Court would be necessary. In loosely construing the word "necessary" to mean "reasonable" or "convenient," Marshall succeeded in giving the Constitution the elasticity that has been perhaps its most remarkable characteristic and that, in the opinion of many scholars, accounts for its longevity. Together with the misnamed "doctrine of national supremacy" (national acts are supreme over state acts if both are otherwise constitutional) enunciated by Marshall in the same case, the doctrine of implied powers has enabled the Supreme Court to uphold the vast expansion of federal law and federal power necessary to meet the changing problems with which the nation has been confronted in the twentieth century. It has been a tool by which courts have upheld federal regulation under the commerce clause, laws enacted to carry out treaties, the federal government's exercise of the power of eminent domain, and the designation of treasury notes as legal tender—to give but a few examples.
There have been times, particularly between 1890 and 1937, when the courts have refused to approve federal legislation that they saw as an infringement on the powers of the states. These rulings generally applied the idea that the Tenth Amendment, in reserving unstated powers to the states, acts as a limitation on the scope of the implied powers of Congress. Thus, the Supreme Court twice struck down anti-child-labor laws, one framed under the commerce clause and the second under the tax clause. But during the half-century after the Court's liberalization in 1937 there were few, if any, such decisions.
Politically, there has always been a tendency toward adoption of the Jeffersonian view by the factions favoring states' rights, whereas those groups that lean toward nationalism tend toward loose construction. Since the issue of states' rights has proved to be an enduring one in American political life, the Jeffersonian argument has never quite been put to rest. It was revived during the 1950s by southerners opposed to federal intervention in race relations and during the 1960s by conservatives opposed to the Supreme Court's liberal decisions, especially those involving congressional use of the commerce and tax powers, during the tenure of Chief Justice Earl Warren. It wasn't until the 1990s, however, that there emerged a majority on the Supreme Court willing to circumscribe the scope of Congressional authority to enact legislation. In 1992, in the first of several cases striking down Congressional enactments, the Court held that the "take title" provision of the Low-Level Radioactive Waste Policy Act of 1985 exceeded the scope of Congress's enumerated powers (New York v. United States). The jury is still out on whether this and subsequent decisions (especially United States v. Lopez, 1995) mark a return to the jurisprudence of the early twentieth century or whether the Justices are simply demanding of Congress express and better documentation of the links between the authorized ends and the "necessary and proper" means Congress uses to attain them.
Bibliography
Barnett, Randy E. "Necessary and Proper." U.C.L.A. Law Review 44, no. 3 (February 1997): 745.
Campbell, A. I. L. "'It is a constitution we are expounding': Chief Justice Marshall and the 'necessary and proper' clause." Journal of Legal History 12, no. 3 (December 1991): 190–245.
Engdahl, David E. "The Necessary and Proper Clause as an Intrinsic Restraint on Federal Lawmaking Power." Harvard Journal of Law and Public Policy 22, no. 1 (Fall 1998): 107–122.
Newmyer, R. Kent. The Supreme Court Under Marshall and Taney. New York: Thomas Y. Crowell Co., 1968.
Schwartz, Bernard. A Commentary on the Constitution of the United States: The Powers of Government Vol 1. Federal and State Powers. New York: Macmillan, 1963.
———. A History of the Supreme Court. New York: Oxford University Press, 1993.
Tugwell, Rexford G. The Compromising of the Constitution (Early Departures). Notre Dame, Ind.: University of Notre Dame Press, 1976.
VanAlstyne, William. "Implied Powers." Society 24, no. 1 (1986): 56–60.
White, G. Edward. History of the Supreme Court of the United States. Vols 3–4. The Marshall Court and Cultural Change, 1815–1835. New York: Macmillan, 1988.
