The Necessary and Proper Clauses, Part 2: Foregoing Powers v. All Other Powers

John Mikhail

The Necessary and Proper Clause authorizes Congress “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.” Most judges and commentators focus attention on the first part of the clause, which refers to the foregoing powers enumerated in Article 1, Section 8. The Necessary and Proper Clause is comprised of three distinct provisions, however, only the first of which is tied to these enumerated powers. Only the first part of the clause thus directly supports the common assumption that the powers of the federal government are tightly circumscribed. Put differently, there are three Necessary and Proper clauses, not one or two. Only a misconception of the scope of federal power can result from ignoring this fact, or from assuming that this aspect of our fundamental law does not exist.

One can begin to grasp the force of these observations by examining the two main components of the N&P Clause—the Foregoing Powers provision and the All Other Powers provision—and recalling the different roles they played in the drafting, ratification, and early interpretations of the Constitution.

Foregoing Powers:

“Congress shall have the Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

All Other Powers:

“Congress shall have the Power … To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The All Other Powers provision is what the Founders generally had in mind when they referred to the last clause of Article 1, Section 8 as the “Sweeping Clause.” It is the only part of the N&P Clause quoted by Alexander Hamilton in Federalist 33 and by James Madison in his initial remarks to the first Congress on the need for a Bill of Rights. Likewise, the All Other Powers provision is the only part of the N&P Clause that James Wilson quotes in his Law Lectures in the course of explaining the powers of Congress. On all three occasions, Hamilton, Madison and Wilson ignore the relatively insignificant Foregoing Powers provision, and focus instead on the more important All Other Powers provision.

The complex All Other Powers provision, not the more transparent Foregoing Powers provision, was the main reason critics objected to the “undefined, unbounded, and immense power” granted to the national government by the Constitution. As the ratification debates got underway, An Old Whig, Brutus, and other anti-Federalist writers drew attention to this particular clause to warn of this immense power. An Old Whig asked:

[W]hat is the meaning of the latter part of the clause which vests the Congress with the authority of making all laws which shall be necessary and proper for carrying into execution ALL OTHER POWERS;--besides the foregoing powers vested, &c. &c. Was it thought that the foregoing powers might perhaps admit of some restraint in their construction as to what was necessary and proper to carry them into execution? Or was it deemed right to add still further that they should not be restrained to the powers already named?

Drawing the most plausible inference, An Old Whig concluded that “besides the powers already mentioned, other powers may be assumed hereafter as contained by implication in this constitution.”

Brutus agreed, warning in the first of his influential essays that it was impossible to determine how far the All Other Powers provision might operate to consolidate the confederated states into one general government. “The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law. A power to make all laws, which shall be necessary and proper, for carrying into execution, all powers vested by the constitution in the government of the United States, or any department or officer thereof, is a power very comprehensive and definite.”

The distinction An Old Whig and Brutus perceived between the Foregoing Powers and All Other Powers provisions is reflected in the drafting history of the Constitution. Both provisions originated in the Committee of Detail, but they were inserted into the committee’s draft at different times, by different individuals, for different purposes. The first clear draft of the Foregoing Powers provision was written by John Rutledge, who had previously objected to the vagueness of the power given to Congress by the Virginia Plan “to legislate in all cases to which the separate States are incompetent” and had demanded “an exact enumeration of the powers comprehended by this [proposal].” By contrast, the All Other Powers provision was the later handiwork of James Wilson, who opposed any attempt at exhaustive enumeration because “it would be impossible to enumerate the powers which the federal Legislature ought to have” (1 Farrand 21, 53, 60).

Like many Southern delegates, Rutledge was wary of giving Congress the power to interfere with the states’ authority over slavery, particularly in light of the antislavery provision of the Northwest Ordinance (Sec. 14, Art. 6). Nonetheless, he recognized that expressly delegated powers must depend on other incidental powers for their execution. Rutledge thus drafted the Foregoing Powers provision to affirm this relatively uncontroversial doctrine of incidental means.

Wilson was an outspoken champion of a different, more robust conception of implied powers, rooted in the law of nations. Two years earlier, he had publicly defended the implied power of Congress to incorporate a national bank on these grounds, despite the absence of any obvious basis in the Articles of Confederation, and despite a clear reservation to the states of all powers not expressly delegated. The language of the All Other Powers provision tracks the logic of Wilson’s bank essay and was meant to encompass its most dramatic principle: that the United States is vested with all the powers of any other nation, including the power to legislate in all cases in which the states are incompetent, or the harmony or general interests of the nation are at stake.

The All Other Powers provision has played a critical role throughout the nation’s history. It is the only part of the Necessary and Proper Clause quoted by Chief Justice Marshall in United States v. Fisher, the Supreme Court’s first case decided under that clause (2 Cranch at 396). It also is the ultimate ground of the Court’s holding in McCulloch v. Maryland, a point Marshall left somewhat opaque in McCulloch, but clarified five years later in Osborn v. Bank of the United States (9 Wheat. at 860). In general, it was the main weapon of early American judges and politicians who maintained the existence of implied powers of government under the Constitution. When Hamilton affirmed Congress’s power to incorporate the Bank of the United States, he drew on the All Other Powers provision. When Wilson’s former law student and future Attorney General Caesar Rodney defended the constitutionality of the Louisiana Purchase, he did the same. All told, the Marshall Court relied on the All Other Powers provision on at least five occasions in the course of its effort to shape the Constitution into a viable charter for American nationalism.

For their part, following a path first marked by Madison and Jefferson, Republican defenders of “states’ rights” in the early Republic frequently sought to deny or eliminate the force of the All Other Powers provision, particularly in the aftermath of the reviled Alien and Sedition Acts. One year after Fisher was decided, for example, John Clopton, a Republican Congressman from Virginia whom John Marshall had narrowly defeated in his own race for Congress in 1799, introduced a constitutional amendment on the House floor that would have left the substance of the Foregoing Powers provision more or less intact, but would have fundamentally altered the original meaning of the All Other Powers provision. The text of the amendment read:

The last clause of the 8^th section of the 1^st article of the Constitution which contains the following words: ‘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,’ shall be construed so as to comprehend only such laws as shall have a natural connexion and immediate relation to the powers enumerated in the said section, or to such other powers as are expressly vested by this Constitution in the Government of the United States, or in any department or officer thereof (House of Representatives, December 11, 1806, emphasis added).

Clopton’s amendment was designed to eliminate the doctrine of implied powers reflected in the All Other Powers provision, while nonetheless preserving a narrow version of the doctrine of incidental powers reflected in the Foregoing Powers provision. In effect, the amendment would have revived the paralyzing limitation of the second article of the Articles of Confederation, which limited Congress to those powers “expressly delegated” to it, and reserved all other powers to the states. The Clopton amendment also would have fundamentally altered the meaning of the 10^th Amendment by adjusting the baseline from which the States’ reserved powers would be measured. Recall that James Madison and Roger Sherman had successfully resisted just such a modification of the 10^th Amendment in the First Congress:

The 9^th proposition, in the words following, was considered, “The powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.”

Mr. Tucker proposed to amend the proposition, by prefixing to it “all powers being derived from the people.” He thought this a better place to make this assertion than the introductory clause of the Constitution, where a similar sentiment was proposed by the committee. He extended his motion also, to add the word “expressly,” so as to read “the powers not expressly delegated by this Constitution.”

Mr. Madison objected to this amendment, because it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutiae. He remembered the word “expressly” had been moved in the convention of Virginia, by the opponents to the ratification, and, after full and fair discussion, was given up by them, and the system allowed to retain its present form.

Mr. Sherman coincided with Mr. Madison in opinion, observing that corporate bodies are supposed to possess all powers incident to a corporate capacity, without being absolutely expressed.

Mr. Tucker did not view the word “expressly” in the same light with the gentlemen who opposed him; he thought every power to be expressly given that could be clearly comprehended within any accurate definition of the general power.

Mr. Tucker’s motion being negatived,

Mr. Carroll proposed to add to the end of the proposition, “or to the people;” this was agreed to. (1 Annals 761; August 18, 1789)

It is worth noting that if either the Tucker amendment or the Clopton amendment had succeeded, American constitutional law would have been transformed in a manner few would recognize. In practice, the Constitution probably would have operated more like a rigid compact among the states and less like a flexible act of national incorporation. The implied powers of government would have been curtailed or eliminated, and what Llewellyn referred to as the nineteenth century’s ‘Grand Style’ of jurisprudence might not have come to pass. In short, without the original meaning of the All Other Powers provision, passages like these could likely not have been written:

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10^th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people’; thus leaving the question, whether the particular power which may become the subject of contest had been delegated to the government, or prohibited to the other, to depend on a fair construction of the whole instrument....In considering this question, then, we must never forget that it is a constitution we are expounding (McCulloch, 17 U.S. at 406-7).

This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs (Id. at 415).

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 consist with the letter and spirit of the constitution, are constitutional (Id. at 421).

Despite its undeniable importance, recent academic and judicial commentary on the Necessary and Proper Clause has almost completely ignored the All Other Powers provision. As a result, debates about the scope of national power often unfold as if this provision did not exist. With only rare exceptions, advocates on both sides of the ongoing ACA litigation, for example, have thus far restricted their attention to the first half of the Necessary and Proper Clause, and the courts have followed suit. The All Other Powers provision has been almost entirely neglected.

Again, this is the precise constitutional provision that Madison invoked to justify the need for a Bill of Rights:

It is true the powers of the general government are circumscribed, they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfill every purpose for which the government was established (Speech to the House of Representatives, June 8, 1879);

Hamilton used to justify the constitutionality of a national bank:

The expressions [of the Necessary and Proper Clause] have peculiar comprehensiveness. They are—“to make all laws, necessary and proper for carrying into execution the foregoing powers & all other powers vested by the constitution in the government of the United States, or in any department of officer thereof” (9 PAH 103, emphasis original);

Wilson quoted to explain the full scope of Congressional power in his Law Lectures:

The powers of congress are, indeed, enumerated; but it was intended that those powers, thus enumerated, should be effectual, and not nugatory. In conformity to this consistent mode of thinking and acting, congress has the power to make all laws, which shall be necessary and proper for carrying into execution every power vested by the constitution in the government of the United States, or in any of its officers or departments (2 Works 872);

and Marshall quoted to explain his holding in McCulloch:

The whole opinion of the court, in the case of M’Culloch v. The State of Maryland, is founded on, and sustained by, the idea that the bank is an instrument which is ‘necessary and proper for carrying into effect the powers vested in the government of the United States’ (Osborn, 9 Wheat. at 860);

More recently, the first half of All Other Powers provision formed the basis of the Supreme Court’s holdings in the Legal Tender Cases:

…Congress has often exercised, without question, powers that are not expressly given or ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the government. He instances the right to sue and make contracts. Many others might be given (Knox v. Lee, 79 U.S. at 535).

[W]e are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts is . . . consistent with the letter and spirit of the constitution, and therefore within the meaning of that instrument, ‘necessary and proper for carrying into execution the powers vested by this constitution in the government of the United States’ (Juilliard v. Greenman, 110 U.S at 450).

It is also the only part of the N&P Clause referred to by Justice Holmes in Missouri v. Holland, the seminal case on Congress’s power to implement treaties:

If the treaty is valid there can be no dispute about the validity of the statute under Article 1, § 8, as a necessary and proper means to execute the powers of the Government (252 U.S. at 432)

Compare these references to the second half of the N&P Clause to how the lower federal courts have construed that clause in the ACA litigation. Perhaps unduly influenced by recent academic commentary, by the Lochner­ Court’s misleading paraphrase of the clause in Kansas v. Colorado (see 206 U.S. at 88 (1907)), or by other dubious judicial interpretations, those federal judges who thus far have invalidated the legislation have focused exclusively on the Foregoing Powers provision:

(1) Judge Hudson in the Eastern District of Virginia:

Because an individual’s personal decision to purchase—or decline to purchase—health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide safe sanctuary. This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power (p. 24).

(2) Judge Vinson in the Northern District of Florida:

The Necessary and Proper Clause is not really a separate inquiry, but rather is part and parcel of the Commerce Clause analysis as it augments that enumerated power by authorizing Congress ‘To make all Laws which shall be necessary and proper’ to regulate interstate commerce (p. 13).

Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power (p. 60, emphasis original).

The Necessary and Proper Clause cannot be utilized to ‘pass laws for the accomplishment of objects’ that are not within Congress’ enumerated powers (p. 62).

(3) Judges Dubina and Hull in the Eleventh Circuit:

Congress has the power ‘[t]o make all Laws which shall be necessary and proper for carrying into Execution’ its enumerated powers (p. 92)

Notice the difference? It emphatically would not have been lost on Madison, Hamilton, Wilson, or Marshall.

In sum, the historical record suggests that the Founders recognized a scope and meaning of the All Other Powers provision that have been largely forgotten or overlooked in contemporary debates over the extent of federal regulatory authority. In light of all the evidence, that provision seems most reasonably construed to encompass the power “to fulfill every purpose for which the government was established,” including the six great purposes of the Preamble—union, justice, tranquility, defense, welfare, and liberty—provided the government’s laws are not expressly prohibited or otherwise improper.

In subsequent posts, I will continue to elaborate on these themes, paying close attention to Resolution VI of the Virginia Plan; the fate of the Bedford motion in the Committee of Detail; the distinction between incidental and implied powers; Wilson’s State House Yard speech; the initial controversies surrounding the N&P clauses during ratification; Hamilton’s and Madison’s defenses of the clauses in Federalist 33 and 44; and other landmarks necessary for understanding the original purpose and meaning of the N&P clauses. I will also discuss the Supreme Court’s inconsistent and unsatisfying analysis of the N&P clauses in United States v. Comstock and consider its potential application to the ACA litigation.