1. Review Article 1 Section 8 of the Constitution which lists the powers granted to Congress. Then review the power that has come to be known as the Necessary and Proper Clause or the “elastic clause.

NECESSARY AND PROPER CLAUSE As we discussed earlier, pursuant to Article I, Section 8 of the Constitution, Congress can exercise those powers enumerated in the Constitution and all other powers that are necessary and proper to carry out the powers that vest with the federal government. What does this mean? Essentially it means that Congress has the power to make ALL laws necessary, proper and appropriate for implementing any power specifically granted to the federal government. Note that the nec essary and proper clause cannot stand alone. It works in connection with some other federal power. In other words, a law cannot be supported in isolation by the necessary and proper clause. It must be linked to some other power. Often called the “elastic clause,” the necessary and proper clause simply states that Congress has the 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.” In Federal ist 33 , Alexander Hamilton asserted that the necessary and proper clause (along with the supremacy clause) merely stated a truism and gave no additional power to the federal government. Of course, that was before he pulled a classic bait -and -switch after ratification and used it to justify the power to charter a national bank in McCulloch v. Maryland . Thomas Jeffer son vehemently opposed Hamilton’s suddenly loose construction and stated: “The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non -enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory. ” So what exactly does “necessary and proper” mean? Legal documents delegating power commonly contain a necessary and proper claus e, and it has a precise, specific definition that was well -understood in the founding era. Basically, it allows an agent to exercise powers not explicitly spelled out in the legal document, but necessary to exercise the specific authority given to him. For example, let’s say I write out a contract granting you the authority to run my grocery store. I don’t need to specify that you have the power to pay a guy to clean the floors, or hire a mechanic to fix a freezer when it goes down. Those powers are necessa ry and proper to running a grocery store. But necessary and proper powers don’t give you the right to give away all of the food items in my stor e and turn it into a n adult entertainment shop. Acco rding to constitutional scholars , as the framers understood the concept, any necessary and proper power remains constrained by specific criteria. The power must be 1. Necessary to carry out the original purpose – like purchasing corn from a farmer to sell in the grocery store . 2. A customary way of carrying out the original purpose. The guy running my grocery couldn’t get ri d of all the food and se ll adult entertainment products because that would clearly not constitute a customary way of running a grocery store 3. An incidental power can never rise to a level greater than the original power delegated. My grocery store manager would have the authority to pay a mechanic for fixing the broken freezer. But he wouldn’t have the power to sell the building and invest the money in the stock market for me. The nec essary and proper clause does not add anything to the authority already delegated to Congress. It does not allow for the creation of new powers. The clause simply reaffirms that the federal government possesses the flexibility to exercise the enumerated po wers already delegated. The clause has frequen tly been coupled with the Commerce Clause as we saw in Gibbons v. Ogden , 22 U.S. 1 (18 24 ) for regulating interstate commerce. Landmark Cases In McCulloch v. Maryland , 17 U.S. 316 (1819) the necessary and proper clause was viewed as a significant expansion of a specific power. Specifically, Chief Justice Marshall held that the power to establish a national bank was “necessary and proper” under Congress’ power to regulate the federal curre ncy.