The authors of the U.S. Constitution wanted to replace the weak
national government of the Articles of Confederation with a stronger
central government. However, they were concerned about giving the new
national government too much power. They tried to limit the strength of
Congress by specifically listing the powers that Congress could have.
But they recognized that they could not anticipate every power that
Congress would need in future decades and centuries, so they ended the
list of enumerated (specifically listed) powers with a special power to
address this problem. Article I, Section 8, Clause 18 of the
Constitution is often called the necessary and proper clause, or the
Article I, Section 8, Clause 18 of the U.S. Constitution"[The
Congress shall have Power] . . . [t]o 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."
Questions to Consider
Does this clause give unlimited power to Congress to make laws? Support your answer with evidence from the clause.
Why do you think this clause is sometimes called the elastic clause?
After studying the distinction between strict constructionists
and loose constructionists, how do you think each group would interpret
the amount of power the clause gives Congress?
Can We Justify the Implied Powers of Congress?
According to the necessary and proper clause, Congress generally may
assume additional powers not specifically listed in the Constitution,
sometimes called implied powers, if there is a link to a power that is
listed in the Constitution. For example, Congress may allocate money to
test a missile-defense system (something not specifically listed in the
Constitution) because Article I, Section 8, Clause 12 gives Congress the
power to "raise and support Armies."
While this example may seem like an obvious extension of
Congress's power, other powers that Congress has assumed over the years
are not so obvious extensions of powers specifically listed in the
Constitution. The exercise below gives you a list of implied powers of
Congress. Beside each one, try to locate a clause in Article I, Section 8 of the Constitution that
could justify Congress assuming that implied power. If you do not think
there is justification in the Constitution for that power, write "no
justification" in the space provided. Be prepared to back up your
Example: Congress gives licenses to broadcasters to play music on the radio.
Answer: Clause 3 may justify this
activity. It gives Congress the power to regulate interstate commerce.
Broadcasting is a business. Thus, it is commerce. Airwaves cross over
state lines, so it involves interstate commerce.
Congress sets a federal minimum wage.
Congress establishes the United States Air Force.
Congress establishes national parks.
Congress creates federal laws against pollution.
Congress makes laws regarding discrimination in employment.
Congress decides that televisions should have V-chips that enable parents to block certain shows.
Congress passes the Gun-Free School Zones Act prohibiting anyone from possessing a firearm in a school zone.