Also known as: necessary and proper power · necessary-and-proper powers · Necessary and Proper Clause · elastic clause · sweeping clause
Written by attorneys — see sources below.
A constitutional principle authorizing Congress to select appropriate means for carrying its enumerated powers into execution. The principle functions as an auxiliary grant that implements specifically listed powers rather than supplying independent substantive authority.
Congress chartered Nexus Financial to centralize bond issuance and extend credit to interstate lenders. State officials challenged the charter as exceeding enumerated powers. The court upheld the statute because chartering the bank supplied a plainly adapted means to execute the powers to tax and regulate commerce.
Congress directed state sheriffs to perform background checks for firearm purchases under a new federal program. Norman Nash, a county sheriff, refused to comply and sought declaratory relief. The court held that the necessary-and-proper power does not authorize Congress to commandeer state officers to administer a federal regulatory scheme.
In 1993 Congress amended the Gun Control Act of 1968 by enacting the Brady Handgun Violence Prevention Act, which directed the Attorney General to create a national instant background-check system by November 30, 1998, and imposed interim requirements on firearms dealers and chief law enforcement officers until that system became operational. Under the interim scheme a dealer proposing to transfer a handgun had to obtain a sworn Brady Form from the purchaser, verify the purchaser's identity, forward notice and a copy of the form to the CLEO of the purchaser's residence, and wait five business days before completing the sale unless the CLEO notified the dealer that the transfer would not violate the law. Jay Printz, CLEO for Ravalli County, Montana, and Richard Mack, CLEO for Graham County, Arizona, filed separate federal actions challenging the constitutionality of the interim provisions that required CLEOs to perform background checks and related tasks. In each case the district court held that the obligation imposed on CLEOs was unconstitutional but severable from the remainder of the Act, leaving in place a voluntary background-check system. The Ninth Circuit consolidated the appeals and reversed, holding that none of the Brady Act's interim provisions violated the Constitution. The Supreme Court granted certiorari.
View caseCongress created an independent agency with a single director removable only for cause. Natasha Nielsen, a regulated business owner, challenged the structure as violating separation of powers. The court examined whether the necessary-and-proper power permitted Congress to insulate the agency head from at-will presidential removal.
Following the 2008 financial crisis, Congress created the Consumer Financial Protection Bureau as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The agency was tasked with implementing and enforcing a large body of federal consumer financial protection statutes, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act, along with a new prohibition on unfair, deceptive, or abusive acts or practices in the consumer-finance sector. The CFPB is led by a single Director appointed by the President with the advice and consent of the Senate for a five-year term, during which the President may remove the Director only for inefficiency, neglect of duty, or malfeasance in office. The agency receives its funding directly from the Federal Reserve rather than through the annual appropriations process. In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law firm that provides debt-related legal services to clients. The demand sought information and documents related to the firm’s business practices to determine whether Seila Law had engaged in unlawful acts or practices in the advertising, marketing, or sale of debt relief services. Seila Law asked the CFPB to set aside the demand on the ground that the agency’s single-Director structure with for-cause removal protection violated the separation of powers. When the CFPB declined, Seila Law refused to comply, and the CFPB filed a petition in federal district court to enforce the demand. The district court rejected Seila Law’s constitutional challenge and ordered the firm to comply with the demand. The Ninth Circuit affirmed, concluding that Seila Law’s arguments were foreclosed by Humphrey’s Executor v. United States and Morrison v. Olson. The Supreme Court granted certiorari to address the constitutionality of the CFPB’s structure and, if necessary, the severability of the Director’s removal protection from the remainder of the Dodd-Frank Act.
The President made recess appointments to the National Labor Relations Board during a three-day intrasession break. Northern Manufacturing challenged the validity of the appointments after an adverse ruling. The court analyzed whether the necessary-and-proper power supported treating the brief break as a recess authorizing the appointments.
Noel Canning is a Pepsi-Cola distributor that became involved in a labor dispute with a union. In 2011 the National Labor Relations Board found that Noel Canning had unlawfully refused to reduce to writing and execute a collective-bargaining agreement. The Board ordered the distributor to execute the agreement and to make employees whole for any losses. Noel Canning petitioned the Court of Appeals for the District of Columbia Circuit to set the Board's order aside. It claimed that three of the five Board members had been invalidly appointed, leaving the Board without a lawful quorum. The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had nominated each of them to the Board, and as of January 2012 their nominations remained pending in the Senate. On December 17, 2011, the Senate by unanimous consent adopted a resolution providing that it would hold pro forma sessions every Tuesday and Friday through January 20, 2012, with no business to be transacted. On January 4, 2012, between the January 3 and January 6 pro forma sessions, the President invoked the Recess Appointments Clause and appointed all three individuals to the Board. Noel Canning argued that the appointments were invalid because they occurred during a three-day adjournment that was not long enough to trigger the Recess Appointments Clause. The D.C. Circuit agreed that the appointments fell outside the scope of the Clause, though on different grounds, and set aside the Board's order. The Supreme Court granted certiorari to address the validity of the recess appointments.
Congress authorized the Chief Judge of the Tax Court to assign special trial judges to certain cases. Neville Norton, a taxpayer, challenged the assignment mechanism as an improper delegation. The court considered whether the necessary-and-proper power permitted Congress to structure the Tax Court's internal operations in that manner.
In 1969 Congress established the United States Tax Court as an Article I court of record and authorized it to appoint commissioners, later renamed special trial judges, to assist its judges. The Tax Court consists of nineteen judges appointed by the President with Senate confirmation to fifteen-year terms. In 1984 and 1986 Congress expanded the Chief Judge's authority to assign special trial judges to hear four categories of proceedings, including any other proceeding the Chief Judge may designate, though only regular Tax Court judges may enter final decisions in the fourth category. Several petitioners deducted approximately $1.5 billion in losses from a tax shelter scheme on their federal income tax returns. In March 1982 they petitioned the Tax Court for review of deficiency determinations. Their cases were assigned to Tax Court Judge Richard C. Wilbur and trial began in 1984. Judge Wilbur became ill in November 1985. The Chief Judge assigned Special Trial Judge Carleton D. Powell to preside over the trial as evidentiary referee with proceedings videotaped. When Judge Wilbur retired effective April 1, 1986, the cases were reassigned to Judge Powell with petitioners' consent for preparation of written findings and an opinion. Judge Powell concluded that the tax shelter consisted of sham transactions and that petitioners owed additional taxes. The Chief Judge adopted Judge Powell's opinion as the opinion of the Tax Court. Petitioners appealed to the Court of Appeals for the Fifth Circuit, which affirmed the Tax Court's decision. Petitioners contended on appeal that assignment of their complex cases to a special trial judge exceeded statutory authority and violated the Appointments Clause. The Fifth Circuit held that the constitutional claim could be raised for the first time on appeal but rejected it on the merits, finding waiver by consent. The Supreme Court granted certiorari to address the statutory and constitutional questions.
Congress created an accounting oversight board whose members could be removed only by a commission whose own members enjoyed for-cause protection. Nova Pharmaceuticals challenged an enforcement action on separation-of-powers grounds. The court assessed whether the necessary-and-proper power allowed Congress to impose this two-layer removal structure on an executive officer.
In 2002 Congress enacted the Sarbanes-Oxley Act, which created the Public Company Accounting Oversight Board as a five-member entity appointed by the Securities and Exchange Commission. The Board oversees audits of public companies and possesses authority to inspect registered accounting firms, initiate investigations, and issue sanctions. Beckstead and Watts, LLP, a Nevada accounting firm, registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. Free Enterprise Fund, a nonprofit organization of which the firm is a member, and Beckstead and Watts sued the Board and its members, the Commission, and the United States in federal district court. They sought declaratory and injunctive relief alleging that the Board's structure violated the Constitution. The district court determined it had jurisdiction and granted summary judgment to the defendants. The Court of Appeals for the District of Columbia Circuit affirmed the district court's judgment in full. The Supreme Court granted certiorari.
View caseYes. The principle permits Congress to select the corporate form when it supplies a means to execute enumerated powers such as taxing or regulating commerce. The charter must remain tied to those enumerated ends rather than creating freestanding legislative authority.
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…It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. M Culloch v. Maryland , 4 Wheat. 316, 420 (1819). Congress has power to regulate Presidential elections and primaries, United States v. Classic , 313 U. S. 299 (1941); Burroughs v.…
…Chadha is merely challenging Congress' authority under the Naturalization Clause, U. S. Const., Art. I, § 8, cl. 4, and the
…nonadjudicatory agencies that Congress merely has located within the Judicial Branch pursuant to its powers under the Necessary and Proper Clause
…is fundamental to our constitutional structure. The Government further contends that the Brady Act is supported by the Necessary and Proper Clause. But that Clause
…Branch requires. See ante , at 11 (“The entire ‘executive Power’ belongs to the President alone”). Instead, Article I’s
No. The principle authorizes Congress to regulate individuals and to structure federal programs, but it does not permit Congress to direct state officers to administer federal regulatory schemes. Such commandeering exceeds the auxiliary role of the power.
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It depends on the structure. The principle allows Congress to create agencies and define their operations, yet it does not authorize removal protections that unduly restrict the President's ability to supervise executive officers exercising core executive power.
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The principle supplies no independent authority to redefine constitutional terms such as recess. Courts examine whether a particular intrasession break qualifies under the appointments clause itself rather than relying on the necessary-and-proper power to expand that clause's scope.
Yes. The principle permits Congress to organize inferior tribunals and assign administrative functions within those tribunals, provided the arrangements remain auxiliary to the exercise of judicial power already vested by Article III.