When was elastic clause used

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List of Partners vendors. Share Flipboard Email. Issues The U. Government U. Legal System U. Foreign Policy U. Liberal Politics U. Martin Kelly. History Expert. Martin Kelly, M. Updated August 14, Constitution provides Congress the power to fulfill its legal powers.

Also known as the "elastic clause," it was written into the Constitution in The first Supreme Court case against the clause was in when Maryland objected to Alexander Hamilton's formation of a National Bank. The Necessary and Proper clause has been used in cases about many things, including challenges about Obamacare, legalizing marijuana, and collective bargaining. Featured Video. View Article Sources. Baude, William. The University of Chicago Law Review National Constitution Center. Cite this Article Format.

Kelly, Martin. Why was the legislative veto declared unconstitutional? It violated the separation of powers. What can happen to witnesses who lie under oath in a congressional hearing?

They can be prosecuted for perjury. Thus, the Clause does not apply to state legislatures regulating congressional election law, prescribing selection of presidential electors, or before the 17th amendment choosing U. Primary tabs. Constitution Article I, Section 8 granting Congress the power to pass all laws necessary and proper for carrying out the enumerated list of powers.

No peerage titles are capable of being bought or sold. The title Lord of the manor is a feudal title of ownership and is legally capable of sale. Article 1, Section 10 prohibits the states from granting any titles of nobility to anyone, whether they are citizens or not.

The Constitution assumes that there will be federal departments, offices, and officers, but no clause expressly gives Congress power to create them. Congress is given specific power to punish counterfeiting and piracy, but there is no explicit general authorization to provide criminal—or civil — penalties for violating federal law.

Virtually all of the laws establishing the machinery of government, as well as substantive laws ranging from antidiscrimination laws to labor laws, are enacted under the authority of the Necessary and Proper Clause. This Clause just might be the single most important provision in the Constitution. At first glance and keep in mind that first glances are not always last glances , close analysis of the words of the Necessary and Proper Clause suggests three criteria for a federal law to be within its scope: Laws enacted pursuant to the Clause must be 1 necessary, 2 proper, and 3 for carrying into execution some other federal power.

In McCulloch v. In NFIB v. The subject is likely to be a point of contention in the future. For a long time, the standard assumption has been that laws can carry federal powers into execution by making other laws grounded in those powers more effective.

For example, the Court assumed in Missouri v. In recent years, however, three Justices have followed the lead of certain legal scholars by arguing that carrying the treaty power into execution means providing funds for ambassadors, pens and ink, and travel to foreign nations—in other words, it means making it possible to negotiate, draft, and ratify a treaty rather than to make the treaty more effective once it is negotiated, drafted, and ratified. Again, this subject is likely to be a point of contention in the future.

All of the foregoing, however, assumes that the right way to interpret the Necessary and Proper Clause is to pick apart its individual words and give each key term an independent meaning. That is not the only way to interpret the clause. Instead, one might look at the clause as a single, undifferentiated provision and try to discern the range of laws that the Clause, viewed holistically and purposively, tries to authorize.

If the Necessary and Proper Clause has a relatively broad scope, as the second vision and two centuries of case law has largely maintained, it provides constitutional authorization for much of the existing federal machinery. If it has a narrower scope, as the first vision and a small but vocal group of Justices and scholars maintains, a great many federal laws that have been taken for granted for a long time might be called into question.

The correct interpretation of the Necessary and Proper Clause might — just might — be the single most important question of American constitutional law. The Necessary and Proper Clause would have been familiar to Founding-era people from their everyday lives. Then, as today, people often designated agents to act on their behalves in various circumstances, ranging from selling goods overseas to managing farms to serving as guardians for minor children.

The legal documents creating those agency relationships would expressly identify the main, or principal , powers to be exercised by the agents. Questions would naturally arise about whether the agents could exercise implied, or incidental , powers in carrying out their tasks. For example, could agents selling goods overseas agree to a sale on credit or could they only accept cash? Could someone charged with managing a farm lease it to a third party or even sell the farm outright if an attractive offer came along?

A legal document could try to specify some of those incidental powers, but to anticipate every circumstance would be both hopeless and expensive. It was drafted by a Committee of Detail consisting of four practicing lawyers familiar with writing agency documents and a businessman familiar with applying them. Several important conclusions follow from the agency-law origins and character of the Necessary and Proper Clause.

First, the initial question for a law enacted under the Clause is not whether the law is necessary, proper, or for carrying into execution other federal powers. The initial question is always whether the law represents exercise of a truly incidental power or instead tries to exercise a principal power that would need to be specifically enumerated. In private law contexts, such questions were often informed by customs.