CONSTITUTIONAL MINUTE #12

Doesn’t the ‘necessary & proper’ clause’  (“elastic clause” or “sweeping clause”) allow Congress to make any laws which the people in Congress think are ‘necessary & proper’?”

No, it does not!

Here it is – Article 1, Sec. 8, last clause:

“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.” (Emphasis mine)

Alexander Hamilton says the clause:

• merely gives to Congress a power to pass all laws necessary & proper to execute its declared powers (Federalist No.

29, 4th para);

• a power to do something must be a power to pass all laws necessary & proper for the execution of that power (Federalist

No. 33, 4th para);

• “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (Federalist

No. 33, 2nd para); and

• thus the clause is “perfectly harmless”, a tautology or redundancy. (Federalist No. 33, 4th para).

James Madison agrees with Hamilton’s explanation. (Federalist No. 44, 10th-17th paras).

In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison are clear that no additional substantive powers are granted by this clause.

Here’s more if want it. Scroll down to No. 10:

https://publiushuldah.wordpress.com/2009/09/08/congress-enumerated-powers/