Necessary and Proper Clause

The Necessary and Proper Clause, also known as the Elastic Clause, the Basket Clause, the Coefficient Clause, and the Sweeping Clause, is a provision in Article One of the United States Constitution, located at section 8, clause 18.

The Necessary and Proper Clause is as follows:

The Congress shall have 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.

According to the Articles of Confederation, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated" (emphasis added). Thus, the Continental Congress had no powers incidental to those which were "expressly delegated" by the Articles of Confederation. By contrast, the Necessary and Proper Clause expressly confers incidental powers upon Congress, while no other clauses in the Constitution do so by themselves.

The draft Necessary and Proper Clause provoked controversy during discussions of the proposed constitution, and its inclusion became a focal point of criticism for those opposed to the Constitution's ratification. While Anti-Federalists expressed concern that the clause would grant the federal government boundless power, Federalists argued that the clause would only permit execution of power already granted by the Constitution. Alexander Hamilton spoke vigorously for this second interpretation in The Federalist Papers. At this time James Madison concurred with Hamilton, arguing in Federalist No. 44 that without this clause, the constitution would be a "dead letter". At the Virginia Ratifying Convention, Patrick Henry took the opposing view, saying that the clause would lead to limitless federal power that would inevitably menace individual liberty.

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