Part One: The Necessary and Proper Clause and Implied Powers

As we see in McCulloch v. Maryland, the Court’s decision to uphold the constitutionality of the second national bank act rests on its conclusion that the national government has “implied powers” in addition to the enumerated powers explicitly stated in the Constitution. Justice Story had already discussed and affirmed the existence of implied powers in his earlier opinion in Martin v. Hunter’s Lessee, where he referred to constitutional powers that exist by “necessary implication.”

Marshall’s justification of such powers is more complete. He focuses on the Necessary and Proper Clause of Section 8 of Article I of the Constitution, the section that enumerates the specific legislative powers of Congress. The first seventeen clauses of Section 8 list many particular objects of possible legislation, including several that refer to national finance and economics, but do not mention a bank, national or otherwise. The eighteenth clause provides Congress with 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.

 But what do “necessary and proper” mean? How shall those terms be interpreted? If the term “necessary” is narrowly construed to mean “indispensable” and “most direct and simple,” then, argues Marshall, the power of Congress will be severely limited. (See page 413 of the opinion.) Rather, he argues that the term “necessary” should be taken in its general understanding as any reasonably effective means to do a job:

To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.


Since creation of a national bank is a reasonably effective way of accomplishing one or more of the enumerated legislative goals listed in the Constitution, Marshall concludes that the national bank law is constitutional. He sums up the general rule or test for determining whether a law is justified by the doctrine of implied powers in a famous formula that you may have heard before: 

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. (Page 421)

 Thus, if the end or goal or object of the legislation is enumerated in the constitution, and if the means chosen to accomplish that goal are reasonably calculated to achieve that end and are not prohibited by other provisions of the Constitutions, then the legislation is constitutional.

 This liberal construction of the Necessary and Proper Clause provides tremendous authority for the federal government. When coupled with the Court’s repeated policy of not questioning too closely the reasoning or calculation of Congress in choosing its means, the clause provides Congress with great latitude in its choice of legislative means.

*                                                          *                                                          *

The text of the Necessary and Proper Clause does not refer only to the enumerated powers of Congress in Article I. Article I, Section 8, Clause 18 also authorizes Congress to make laws to implement “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Even beyond the legislative powers of Congress, the reasoning of the implied powers doctrine—not the Necessary and Proper Clause itself—has been used to constitutionally justify actions by each of the three branches of the national government to do things that are not spelled out in either federal laws or the Constitution—the so-called incidental or auxiliary powers. Cases such as McGrain v. Daugherty (1927; congressional power to subpoena witnesses), In re Neagle (1890; presidential power, executed by the Attorney General, to assign a federal marshal to protect a Supreme Court justice), and Young v. United States ex rel Vuitton et Fils (1987; judicial power to punish contempt of court) all followed the implied powers reasoning. The goal or object of the government action was to enable the particular branch of the government to fulfill the constitutional function; the action or means taken was a reasonable way of fulfilling that function; and the action taken did not violate some constitutional prohibition, such as an individual liberty protected by the Bill of Rights. The implied power reasoning has even been used by the Court to test actions taken by the states in pursuit of their police powers under the Tenth Amendment. (See Jacobson v. Massachusetts, 1905; upholding state mandatory vaccination laws.)   

 One special case we must look at in this regard is the legislation that Congress enacts to implement the Amendments to the Constitution. A number of the Amendments to the Constitution have what is called an enforcement clause (Amendments 13, 14, 15, 18, 19, 23, 24, 26). The first one, attached to the Thirteenth Amendment (1865) is typical:

 Section 2. Congress shall have power to enforce this article by appropriate legislation.

This language is almost identical to the languagd in the enforcement clauses of the Fourteenth Amendment (Sec. 5) and the Fifteenth Amendment (Sec. 2). How should the Court construe this enforcement power? What are the limits of congressional power under this and similar provisions in constitutional amendments? Its opinion in the 1966 case of South Carolina v. Katzenbach set forth the rule. Congress had enacted the Voting Rights Act of 1965 pursuant to its authority to enforce the Fifteenth Amendment’s prohibition of state laws or actions denying citizens the right to vote on the basis “of race, color, or previous condition of servitude.” The enforcement clause of the Fifteenth Amendment is practically identical to the clause quoted above in the Thirteenth. What does it mean? 

Finally, the Court in recent years has announced limits to the power of Congress under both the enforcement clauses of the amendments and under the Necessary and Proper Clause itself. The City of Boerne case reflects the first of these limits; the National Federation of Independent Business, or the Obamacare case, reflects the latter. What limits did each of these cases place on the implied powers of Congress? What new rules did the Court rely upon for its decisions?