Necessary-and-proper clause
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The necessary and proper clause (also known as the elastic clause, the basket clause, the coefficient clause, and the sweeping clause[1]) refers to the provision in Article One of the United States Constitution, section 8, clause 18, that "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."
The clause has been paired with the Commerce Clause to provide the constitutional basis for a wide variety of federal laws, including criminal laws, which were not considered implied powers of a power to regulate by Anti-Federalists. For example, Congress in the Federal Kidnapping Act made it a crime to transport a kidnapped person across state lines, because the transportation would be an act of interstate activity over which the Congress has power.
The Supreme Court in Wickard v. Filburn (1942), upheld a federal statute making it a crime for a farmer to eat his own wheat that was subjected to price and production controls. A series of Supreme Court decisions resulting in the desegregation of private businesses, such as hotels and restaurants, were supported on the basis that these business establishments, although not directly engaged in interstate commerce, no doubt had an effect on it. Since the New Deal the Supreme Court has been reluctant to limit the scope of authority allowed under the combination of these clauses.
The term "necessary-and-proper clause" comes from the Associate Justice Louis Brandeis, writing for the majority in the Supreme Court decision in Lambert v. Yellowley (1926).
The phrase became the label of choice and was universally adopted by the courts and received Congress' imprimatur in Title 50 of the United States Code, section 1541(b) (1994), on the purpose and policy of the War Powers Resolution. [1] The clause does not require that all federal laws be necessary and proper; federal laws that are enacted directly pursuant to one of the enumerated powers need not comply with the clause. As Chief Justice Marshall put it, this clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted." McCulloch v. Maryland, 17 U.S. 316, 420 (1819) quoted in Printz v. United States, 521 U.S. 898 (1997) (Stevens, J., dissenting, joined by Souter, Ginsburg & Breyer, JJ.).
[edit] References
- ^ "Constitutional Clauses & Their Nicknames." marian gould gallagher law library. 05 Oct 2004. 4 Dec 2006 <http://lib.law.washington.edu/ref/consticlauses.html>.
[edit] See also
- Debates in the Federal Convention of 1787, James Madison.
- The Virginia Report, J.W. Randolph, ed. (1850) — Documents and commentary arising out of the controversies attending the Alien and Sedition Acts, including the Kentucky Resolutions of 1798 and 1799 and the Virginia Resolution of 1798, which set forth the "Doctrine of '98" concerning constitutional interpretation, and led to the "Revolution of 1800", the dominance of the Jeffersonians, and the demise of the Federalist Party.
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