Diagram of Necessary and Proper Clause

One of the most controversial clauses of the Constitution is Art. I Sec. 8 Cl. 18, which reads:

[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].

To keep the diagram size manageable we have removed the words in square brackets [] that aren’t essential to the analysis.

There appears to be no grammatical ambiguity in this clause as there is in the Tax/Spend/Welfare Clause previously diagrammed, so interpretation is mainly a matter of finding the original meanings of the words.

The key is the mandate that the laws authorized by this clause must be “necessary and proper”. The conjunction “and” means they must satisfy both conditions, so in any case on whether such a power is legitimate, one would need to prove both “necessary” and “proper”, not just one.

However, “necessary and proper” are further restricted by the prepositional phrase beginning with “for” that defines the purpose for which the laws must be “necessary and proper”, specifically for “carrying into execution … Powers”, a gerund phrase. Therefore, anyone claiming a power under this clause must not only prove it is both “necessary” and “proper” but that it is also “for carrying into execution” a power otherwise delegated or “vested”.

The implied power is only of a delegated or vested power found elsewhere in the Constitution, not of another implied power. This clause is not recursive. Only one level of implication from an explicit power is allowed.

The term of art “carrying into execution” had a fairly restrictive meaning in 1787. It did not extend to getting a desired outcome, such as compliance by the public with a law authorized by a delegated power. It meant only for an official to perform the duty of his office defined by a law, that is, to make a certain kind of effort. It was well understood and expected in 1787 that laws and enforcement efforts were unlikely to ever have full compliance, and might have very little compliance. That did not mean the official had whatever power he might need or find convenient to get such compliance. If he lacked enough power then he either had to have Congress amend the statute, if that was inadequate, within the Constitution, or amend the Constitution, with concurrence of 3/4 of the states.

So essentially, “carrying into execution” meant only administrative powers to acquire and use tools and resources for, and to remove obstacles to, performing duties. Extending powers under this clause to things that might “affect” commerce is a usurpation, because this clause only authorizes Congress to do things that enable the regulators in the performance of their duties. To extend powers any further would be to remove any limiting principle on the exercise of power under the Commerce Clause, and if “Commerce” is redefined to include all “economic activity”, and not just trade in tangible commodities, then Congress would have unlimited power to do anything, which was obviously not intended or understood by the Framers. It would make the rest of the Constitution redundant.

To attempt to correct the erroneous line of precedents stemming from McCulloch v. Maryland (1819), the following clarifying amendment is proposed:

Article I Section 8 Clause 18 of this Constitution shall be construed to only include enablement of the completion of duties by duly elected or appointed officials, to make a limited, reasonable effort strictly necessary to exercise an express power narrowly construed, and not to go beyond completion of the duty to do whatever might be deemed convenient to get an outcome or result for which the effort might be made.

See also:

• What is the limiting principle? — Exploration of question raised by Justice Kennedy in oral arguments.
  
• Unnecessary and Improper — Analysis of Necessary and Proper Clause.
• The original meaning of “carrying into execution” — The restrictive phrase has never been properly adjudicated.
• Clarifying Amendments — In the form of a bill.
  

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