Also known as: necessary & proper · necessary-and-proper · elastic clause · sweeping clause
Written by attorneys — see sources below.
A constitutional grant of authority that permits Congress to enact laws appropriate for carrying into execution its enumerated powers. The clause supplies auxiliary power to select convenient means rather than an independent source of substantive legislative authority.
Congress enacts a statute creating the Federal Investment Bank to centralize bond issuance for the Treasury and to standardize credit facilities for banks engaged in interstate lending. Riverbend Community Bank challenges the charter as exceeding enumerated authority. The statute qualifies as a permissible means because it directly implements Congress's powers to tax, borrow, and regulate commerce.
Congress creates FedRetail Clear to process all interstate retail transactions and share data with federal tax authorities. MetroMart sues, claiming the entity lacks constitutional foundation. The clearinghouse functions as an appropriate instrument because it facilitates collection of taxes and regulation of interstate commerce.
Congress creates a national repository to compile and transmit commercial records needed for uniform bankruptcy administration. A state agency refuses to supply data, asserting local control. The repository statute is valid because it selects a convenient means to execute the bankruptcy power.
In March 1992, Alfonso Lopez, Jr., a twelfth-grade student at Edison High School in San Antonio, Texas, arrived at school carrying a concealed .38-caliber handgun and five bullets. Acting on an anonymous tip, school authorities confronted Lopez, who admitted possessing the weapon. Local police arrested him and charged him under Texas law with firearm possession on school premises. The following day, state charges were dismissed after federal agents charged Lopez with violating the Gun-Free School Zones Act of 1990. A federal grand jury indicted him on one count of knowing possession of a firearm at a school zone. Lopez moved to dismiss the indictment, arguing that the statute exceeded Congress's power to legislate control over public schools. The district court denied the motion, concluding that the statute was a constitutional exercise of Congress's power to regulate activities affecting commerce because the business of schools affects interstate commerce. After a bench trial, the court found Lopez guilty and sentenced him to six months' imprisonment and two years of supervised release. Lopez appealed to the Court of Appeals for the Fifth Circuit, which reversed the conviction, holding that the statute was beyond Congress's power under the Commerce Clause. The Supreme Court granted certiorari to review the case.
View caseCongress charters an entity to finance and coordinate improvements to roads and ports used in interstate trade. A municipality attempts to block the entity's projects with local permitting rules. The charter is a permissible auxiliary measure because it executes the commerce power through convenient fiscal means.
In the late 1990s the city of New London, Connecticut, confronted severe economic decline after the 1996 closure of the Naval Undersea Warfare Center, which had employed more than 1,500 people. The city's unemployment rate stood nearly double the state average and its population had dropped below 24,000 residents from a 1970 high of 30,000. State and local officials therefore designated the Fort Trumbull peninsula for targeted economic revitalization. In 1998 the New London Development Corporation, a private nonprofit entity, was reactivated to prepare a redevelopment plan covering roughly 90 acres. The plan divided the area into seven parcels designated for a waterfront conference hotel and marinas, retail and entertainment space, research and office facilities, parking and park support, residential units, a Coast Guard museum, and additional office and retail uses. The city council formally approved the plan in January 2000 and authorized the NLDC to acquire needed parcels by purchase or, if necessary, by eminent domain. Petitioners Susette Kelo, Wilhelmina Dery, and seven other owners held fifteen properties within parcels 3 and 4A; ten of those parcels were occupied by the owners or their family members and none was alleged to be blighted. After negotiations with the NLDC failed, the corporation initiated condemnation proceedings against the remaining properties in November 2000. In December 2000 the petitioners filed suit in New London Superior Court asserting that the proposed takings violated the public-use limitation of the Fifth Amendment. Following a seven-day bench trial the Superior Court entered a permanent restraining order barring condemnation of the parcel 4A properties but denied relief as to the parcel 3 properties. Both sides appealed to the Connecticut Supreme Court, which upheld the validity of all challenged takings. The United States Supreme Court granted certiorari to review the federal constitutional question.
View caseCongress establishes an office to gather and transmit proof required for enforcement of federal criminal statutes on the high seas. A defendant objects that the office exceeds enumerated authority. The statute is valid because the office supplies an appropriate instrument for executing the piracy power.
During a 1967 adjudicatory hearing conducted pursuant to section 742 of the New York Family Court Act, a judge in New York Family Court found that the twelve-year-old appellant had entered a locker and stolen one hundred twelve dollars from a woman's pocketbook. The petition which charged appellant with delinquency alleged that his act, if done by an adult, would constitute the crime or crimes of larceny. The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt but relied on section 744(b) of the New York Family Court Act, which provides that any determination at the conclusion of an adjudicatory hearing that a juvenile did an act or acts must be based on a preponderance of the evidence. After a subsequent dispositional hearing, appellant was ordered placed in a training school for an initial period of eighteen months, subject to annual extensions of his commitment until his eighteenth birthday, six years in appellant's case. The Appellate Division of the New York Supreme Court, First Judicial Department, affirmed without opinion. The New York Court of Appeals then affirmed by a four-to-three vote, expressly sustaining the constitutionality of section 744(b). The Supreme Court noted probable jurisdiction.
View caseCongress directs creation of a central registry of militia officers and armaments to facilitate rapid federalization during invasion threats. A state withholds records, claiming exclusive authority. The registry qualifies as a proper means because it directly aids execution of the militia powers.
Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation or maintenance of the train. He asserted that he was rightfully on the premises as a licensee because he was on a commonly used beaten footpath which ran for a short distance alongside the tracks. He further alleged that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way are to be deemed trespassers; and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence, unless it be wanton or wilful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts. He contended that, since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law. The trial judge refused to rule that the Pennsylvania law precluded recovery. The jury brought in a verdict of $30,000. The judgment entered thereon was affirmed by the Circuit Court of Appeals, which held that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law and that upon questions of general law the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is. Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, the Supreme Court granted certiorari.
View caseNo. The clause authorizes Congress to select appropriate means for executing enumerated powers such as taxing, borrowing, and regulating commerce. It does not create independent substantive authority to legislate on any subject.
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A statute qualifies when it is plainly adapted to a legitimate end under an enumerated power, is not prohibited by the Constitution, and is consistent with its letter and spirit. Chartering a corporation to facilitate fiscal or commercial operations satisfies the test.
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No. The clause cannot convert noneconomic local conduct into a proper subject of federal regulation merely by asserting downstream effects on markets. Aggregation applies only to economic activity.
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Yes. A state law that singles out a federally chartered entity for unfavorable treatment burdens the execution of enumerated powers and violates intergovernmental immunity.
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No. The clause permits implementation of enumerated powers but does not authorize Congress to transfer fundamental legislative determinations to the executive branch.
…law is hazy but no one doubts federal power over procedure. Wayman v. Southard , 10 Wheat. 1. The Judiciary Article and the “necessary and proper” clause of Article One may fully authorize legislation, such as this section of the Judiciary Act. In this Court, stare decisis , in statutory construction, is a useful rule, not an…