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'Necessary & Proper' and Interstate Commerce Clauses

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  • 0:06 Necessary and Proper Clause
  • 1:39 McCulloch v. Maryland
  • 3:06 Commerce Clause
  • 4:51 Scope of the Commerce Clause
  • 6:13 Dormant Commerce Clause
  • 6:47 Lesson Summary
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Lesson Transcript
Instructor: Ashley Dugger

Ashley is an attorney. She has taught and written various introductory law courses.

The United States Constitution includes several important provisions that empower the United States Congress to make particular laws. This lesson explores the necessary and proper clause and the commerce clause.

The Necessary and Proper Clause

Article I, Section 3 of the United States Constitution contains the necessary and proper clause. This is one of the most powerful clauses in the Constitution. Generally speaking, this clause allows Congress to make any law it deems essential and appropriate.

This clause is often called the 'elastic clause' because it expands the powers of Congress beyond the powers already enumerated in the Constitution. Enumerated powers are those that are specifically set out in the Constitution and are defined in the clause as 'foregoing powers.' The elastic clause can be stretched to include many different types of laws covering many different issues.

This clause states that Congress can 'make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution.' It works as a 'catch-all.' There are many powers already given to Congress in Article I. The necessary and proper clause tells Congress that it can additionally make any law it believes it needs to make in order to carry out those powers.

For example, through the necessary and proper clause, Congress established the federal judicial system and enacted a large body of federal crimes, though neither one of these duties is enumerated through the Constitution.

McCulloch v. Maryland

Though the necessary and proper clause is set out in the Constitution, it was defined and placed into common usage through the famous 1819 Supreme Court case of McCulloch v. Maryland. Here, Chief Justice Marshall stated, 'Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.'

The opinion in the McCulloch case established a 'means to an end' test. This means that Congress can legislate an area as long as the end result is constitutional and within Congress' enumerated powers.

For example, there are federal laws that establish record-keeping requirements for prescription drug transactions. These requirements allow the federal government to police these transactions. This is not an enumerated power. But because the requirements also aid the enforcement of federal taxes, the requirements are constitutional. The federal taxing power is an enumerated power.

Note, though, that the necessary and proper clause doesn't authorize Congress to enact any law it wishes to enact. The laws must be 'appropriate,' which means the laws must be designed to further Congress' enumerated powers.

The Commerce Clause

The commerce clause is also found in Article I, Section 3 of the Constitution. The commerce clause is an example of an enumerated power.

The commerce clause gives Congress the power 'to regulate commerce with foreign nations, and among the several states.' Generally speaking, this means that Congress controls interstate commerce and commerce between the U.S. and other countries. Commerce is the commercial trade, business, or movement of goods or money. Interstate commerce commonly refers to the commerce that involves transportation across state lines.

For example, let's say I own an internet-based business where I sell t-shirts. If I live and work in Oregon, but sell a t-shirt to a customer in New York, that is an example of interstate commerce. The customer must send money to me in Oregon, and I must send the t-shirt to New York.

The Clauses Working Together

The necessary and proper clause works together with Congress' enumerated powers. For example, this clause sometimes works together with the commerce clause.

In the 1911 Supreme Court case of Southern Railway Co. v. United States, the Court upheld an amendment to the Safety Appliance Act. This amendment required safety equipment for railroad cars used only within a state. But because the amendment also increased safety for cars traveling between states, the amendment was found to be constitutional under the necessary and proper clause. This is because it furthered the proper regulation of interstate commerce, as is allowed by the commerce clause.

The Scope of the Commerce Clause

As was true in the Southern Railway case, the commerce clause has been used to validate federal laws that do not seem to involve interstate commerce.

Many people don't realize that the Civil Rights Act of 1964 was passed under the commerce clause. The act outlawed segregation and prohibited discrimination against African Americans, and it allowed the federal government to charge private businesses with equal protection violations.

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