The “necessary and proper” clause of the Constitution

I hear people regularly chastise Congress and the Courts for over-reaching, for asserting powers that the Constitution never gave them.  Well ….  Maybe.  But maybe not too.  Huh?

The “necessary and proper” clause of the Constitution explains a lot.  It can be found in Article I, §8, cl. 18.  The U.S. Supreme Court, in 1819 said that “[G]overnment is acknowledged by all to be one of enumerated powers,” McCulloch v. Mary-land, 4 Wheat. 316, 405 (1819).  So every law must be based on one of the enumerated powers we all know about.  But, in addition, the government must also “be entrusted with ample means for their execution.” McCulloch, 4 Wheat., at 408. Accordingly, the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the authority’s “beneficial exercise.” Id., at 413, 418; see also id., at 421 (“[Congress can] legislate on that vast mass of incidental powers which must be involved in the constitution . . .”).  By the way “necessary” does not mean “absolutely necessary”.  Id. at 413-15.  If the end is legitimate, within the scope of the Constitution, and the means appropriate and the law is constitutional.  Id.

What does this mean?  Well for about 195 years (at least) the U.S. Supreme Court has let Congress decide not only what laws the enumerated powers permit, but what other laws that are convenient, useful or helpful to allow the federal government to act, should be passed.   Oh and by the way, if you really want to see how this helps us, read United States v. Comstock, and watch how the Supreme Court used the Necessary and Proper clause to keep perverts and sex offenders locked up forever.

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