The Horizontal Sweeping Clause

JB

To explain why Congress can create the Department of Education, you must first distinguish two questions: (1) What gives Congress the power to create any departments in the executive branch at all; and (2) What gives Congress the power to create the sort of laws that will be implemented by that department. The answer to (1) is the sweeping clause in its horizontal aspect, which gives Congress the 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.*" (emphasis added). We usually think about this clause in its vertical aspect, that is, how it divides power between the states and the federal government, but it is equally important in its horizontal aspect, in giving Congress power to create new executive departments. The "horizontal sweeping clause" is the source of Congress's power to create various administrative elements of the federal government above and beyond its powers to provide for an Army and Navy, and to create lower federal courts.

We know that the Constitution contemplates creation of executive departments from the opinions clause of Article II, section 2, which gives the President the power to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." Because the number of executive departments is not specified in the Constitution itself, Congress is given the power to create new ones (or abolish old ones).

The test for whether an exercise of the horizontal sweeping clause is constitutional is the test of McCulloch v. Maryland. This brings us to question (2). If the Constitution gives the federal government no powers at all in the field of education, then it would not be appropriate under the horizontal sweeping clause to create a department of education. However, because the Constitution gives Congress powers to regulate education under the taxing and spending clause (as well as the commerce clause to some extent) it may create an Executive department which implements laws which it passes dealing with education.

The horizontal sweeping clause is important for another reason: It helps us understand why Alexander Hamilton was right that the words "necessary and proper" do not mean "absolutely necessary" or "required" but rather "convenient," "helpful," or "appropriate," essentially the doctrine created in McCulloch v. Maryland. We ordinarily think of the Necessary and Proper Clause in terms of debates about federal power vis a vis the states, but the same words govern Congress's powers to set up the Executive and Judicial branches and to create new departments. The test for what Congress may do in setting up these departments cannot be whether doing so is necessary in the sense of "absolutely necessary" or "required." Rather, Congress must be given broad discretion in what departments it creates and now many, and how it divides up responsibilities between the various departments.

Since the words "necessary and proper" apply both to the clause's horizontal and vertical aspects, presumptively they have the same relatively broad meaning in both of these aspects. However, when the clause is invoked in its vertical aspect, it must also be read in conjunction with principles of federalism (which are articulated in the Tenth Amendment); when it is invoked in its horizontal aspect, it must be read in conjunction with principles of separation of powers.