Have you ever heard someone say, “Congress had to pass ‘x’ law because it was necessary and proper to do their job.” or “It’s necessary and proper that Congress try to regulate the economy/regulate healthcare/enforce climate change measures etc”? I’m sure your answer to this question is yes. Political pundits throw this “necessary and proper” phrase around like its confetti at a party—-and as if they know what they are talking about. I can tell you this— they do NOT.
So, what is this “necessary and proper” clause? Where does it come from and what does it mean? Before I explain, you need to understand a few more basics about Article I of the Constitution in order to understand the context of the phrase.
As I discussed in Part One of this series on the Constitution, the Constitution applies only to the federal government, not the states. This was the original intent of the founders when writing the Constitution. They were not as concerned about state government power as they were federal government power. They’d experienced the abuse that can happen when power is highly consolidated.
Madison says in Federalist No. 45 “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” In other words, anything NOT mentioned explicitly in the Constitution as a federal power—-is not a federal power. It is a state power.
I listed specific powers in Part One. Don’t forget these as you read the rest of this post. The powers I listed in Part One, along with the ones I list below, are the only powers specifically designated to Congress. Any powers not mentioned here are powers that are left to the states. The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively”.
Picking up from where I left off in Part One, Article I of the Constitution says:
To constitute tribunals inferior to the Supreme Court;
In other words, Congress creates all inferior courts. The Constitution only created one Court! (If you want to learn more about this, check out this post).
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
This is essential and something I’ll touch on more specifically in another blog post. Congress and only Congress can declare war. Not the President, nor the executive branch. Don’t let the media or anyone else lie to you and tell you otherwise.
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
If you notice, it is Congress that handles the raising, arming, and handling of any internal or external threats through the use of armed forces. Hint: NOT the President.
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And
Basically, this clause allows Congress (not any state) to have exclusive control over the District of Columbia, where the capital is found.
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.
Ok, so here’s where the rubber meets the road. This “necessary and proper” clause has been taken, misused and abused more times than I can count. Pay attention to the wording here in the Constitution. Congress (only Congress) is allowed to make all laws which are necessary and proper for carrying into execution the… what? Anything they deem necessary? Anything the people demand (e.g. healthcare)?
No. Congress is supposed to make laws that are necessary and proper to carry into execution the foregoing powers. “Foregoing” means “preceding; going before”. In other words, Congress is tasked with making laws that are necessary and proper for carrying out the duties listed above this clause in the Constitution, the powers I just listed in Part One and Two of the Constitution for Dummies. That’s it! There is no smoking gun here. This list of powers is a list of potential law, those powers are not law. It is then the job of Congress to deem what laws are necessary and proper (for them to write) to carry out the powers the Constitution gave them to carry out.
If you notice, the “necessary and proper” clause continues and says, “and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Essentially, this means that Congress can make laws that are necessary and proper for carrying into execution any other powers that the Constitution gives to the government——which, if you’ve read the Constitution, are not very many.
Does this “necessary and proper” clause make sense now? The courts, political talking heads, and politicians assume that Americans are uneducated about the true meaning behind this phrase and therefore manipulate us by using it to justify overreach and abuse of power. “Oh well, it was necessary and proper to do so!”. Oh really? Did the law fall within the boundaries of the Congressional powers explicitly listed in the Constitution? If not, then Congress has violated the Constitution. Don’t be fooled the next time you hear this phrase. If it’s a friend or acquaintance who uses it, please educate them on what you’ve learned. Otherwise, our representatives will keep manipulating us and have no reason to change, BUT you can change that!
The Liberty Belle