Back in 2009, I went on the air on Right to Redress and said that from my perspective, the “necessary and proper” clause of the U.S. Constitution conferred no special powers.
The “necessary and proper” clause reads:
“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.“
Later, I discovered that I was really speaking from my own desire rather than what two important sources had to say about it, which later convinced me their assessment is the correct one.
One, “The father of the Constitution,” James Madison, wrote in Federalist Paper #44 (emphasis mine):
“Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter.“
He went on to write:
“Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper.“
I argue that the form of the provision IS improper, because Congress can assert that all laws it passes are necessary and proper for carrying out its enumerated powers. All laws it passes certainly are open to judicial review, but in most cases, due to primarily to time and money constraints, over time, the benefit of the doubt will go to passively accepting what Congress has enacted.
Even an opponent of the Constitution, the anti-Federalist, Brutus (likely Constitutional Convention attendee Robert Yates), wrote:
“A case cannot be conceived of, which is not included in this power.“
Therefore, we have two of the most relevant figures at the time, agreeing that the necessary and proper clause is indeed very meaningful, and that it is even essential to Congress’ power.
Brutus elaborated on how the clause could be used in combination with the taxing power in order to justify employing an army of tax collectors to eat out the substance of the people. (Sound familiar today?)
I think that a proper form of the clause would have been to say these are the powers of Congress. Period. By including “necessary and proper,” it gives Congress the license to claim that everything it passes is necessary and proper for carrying out its enumerated powers.
Some of Congress’ enumerated powers are very narrowly and well-defined, whereas its taxing power is very broad.
Congress has the enumerated power to coin money, which I interpret as only referring to striking coins, and not issuing paper currency.
Congress can argue that issuing paper currency is necessary and proper for carrying out its taxing power, however, and make paper currency legal tender for taxes, and, therefore, such a law would be constitutional. Despite Congress going outside of its constitutional bounds in most areas these days, resulting in spending over 20% of the nation’s annual GDP as of 2011, the constitutional legal tender status of paper currency for taxes could result in such a distorting effect on the overall economy that it can become a de-facto legal tender for private sector payments.
Therefore, I agree with Madison and Brutus that the necessary and proper clause is a very real power that is essential to Congress’ exercise of its enumerated powers, and I particularly agree with Brutus that it can be used in conjunction with Congress’ taxing and spending powers, in particular, to constitutionally extend Congress’ enumerated powers beyond the original intent of “originalist” framers such as Madison.