The Necessary And Proper Clause In The Constitution

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Necessary and Proper
“Necessary and Proper” clause is often referred to as Article 1, Section 8 of the Constitution and stats that Congress has the power "to make all laws which shall be necessary and proper for the carrying into execution the foregoing powers." At the Constitutional Convention, the Committee of Detail took the Convention 's resolutions on national legislative authority and personalized them into a series of enumerated powers. “This created the principle of enumerated powers, under which federal law can govern only as to matters within the terms of some power-granting clause of the Constitution.”(1) By including the Necessary and Proper Clause, The Framers set the standard for laws and stated that even if they are not within …show more content…

Unlike Randolph 's authorization to "organize the government"—which the Committee of Detail had replaced with Wilson 's more exacting phrase—"laws...for carrying into Execution" the powers (and thus discretion) reposed in another branch can only mean laws to help effectuate the discretion of that other branch. It gives Congress no power to instruct or impede another branch in the performance of that branch 's constitutional role. Of course, when the clause is invoked to effectuate ends within Congress 's own powers, it compounds Congress 's discretion: not only the selection of means, but also the selection of policy ends, rests in Congress 's own discretion.The basic operation of the Necessary and Proper Clause is the same in every context. For example, federal tax lien and collection laws; record-keeping, reporting, and filing requirements; and civil and criminal penalties for non-payment are not themselves exertions of Congress 's power to tax, but are laws "necessary and proper for carrying into Execution" the federal taxing power. That is why "provisions extraneous to any tax need" are not rendered valid simply by inclusion in a tax statute. United States v. Kahriger (1953); see also Linder v. United States (1925). Similarly, with regard to …show more content…

See Civil Rights Cases (1883); Katzenbach v. Morgan (1966) ("the McCulloch v. Maryland standard is the measure for what constitutes ‘appropriate legislation ' under Section 5 of the Fourteenth Amendment"). Recent cases have held that to invoke Enforcement Clause support, a law must be "congruent" and "proportional" to the amendment violation it aims to redress. City of Boerne v. Flores (1997); Board of Trustees of the University of Alabama v. Garrett (2001). These can be seen as elaborations of the McCulloch principle—to invoke the Necessary and Proper Clause, a law must be "plainly adapted" to an enumerated end—a principle that for almost a century has been exhibited in "affecting commerce" cases as the requirement of "substantial effect." This substantial effect test was raised to new prominence in United States v. Lopez (1995). If the analogy between this clause and the various enforcement clauses is to hold, perhaps the same principles of congruence and proportionality must also be applied in so-called affecting commerce cases and in other contexts of the Necessary and Proper

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