ArtI.S8.C18.3 Necessary and Proper Clause Early Doctrine and McCulloch v. Maryland

Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] 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.

The Supreme Court was first called upon to construe the Necessary and Proper Clause in an 1805 case, United States v. Fisher, which concerned a law giving the United States priority over other creditors in the collection of debts.1 Chief Justice Marshall held that this law was a necessary and proper means of executing Congress’s power to raise revenue and pay the debts of the United States.2 Marshall rejected the argument that acts of Congress must be “indispensably necessary to give effect to a specified power,” reasoning that such a requirement would produce “endless difficulties.” 3 Rather, under the Necessary and Proper Clause, “Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the [C]onstitution.” 4

Marshall’s 1819 opinion in McCulloch v. Maryland5 expanded on Fisher to provide the canonical interpretation of the Necessary and Proper Clause.6 McCulloch resolved the long-simmering debate over whether Congress had the power to incorporate a national bank.7 Because the enumerated powers of Article I do not explicitly include the power to establish a bank, the issue in McCulloch was whether creating a national bank was a necessary and proper means of effectuating Congress’s powers “to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.” 8

The decision hinged on the interpretation of the Necessary and Proper Clause. In McCulloch, the Court empathically rejected a narrow interpretation of “necessary” as limiting Congress’s powers to those that are “indispensably” or “absolutely” necessary to the exercise of a enumerated federal power.9 Adopting this strict reading, Marshall argued, would effectively hobble the operations of the Federal Government, “rendering [it] incompetent to its great objects” and “depriv[ing] the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.” 10 In Marshall’s view, such a narrow construction was particularly inappropriate for “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” 11 The Court instead held that, in context, “necessary” was better understood to mean merely “conducive to” or “needful.” 12 As the unanimous opinion famously concluded: “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.” 13

6 U.S. (2 Cranch.) 358, 385 (1805). back
Id. at 396–97. back
Id. back
Id. at 396. back
17 U.S. (4 Wheat.) 316 (1819). The nine days of oral argument in McCulloch brought together an extraordinary constellation of legal talent, with Daniel Webster, then U.S. Attorney General William Wirt, and former U.S. Attorney General William Pinkney arguing for McCulloch. See Edward S. Corwin, John Marshall and the Constitution 128–29 (1921) (describing the arguments); Daniel A. Farber, The Story of McCulloch: Banking on National Power, 20 Const. Comment. 679, 690–98 (2004) (same). Luther Martin, a member of the Constitutional Convention and prominent Antifederalist, argued for Maryland, notably citing the assertions made in the Federalist Papers that, he argued, disclaimed that broad interpretations of the Necessary and Proper Clause now offered to support the Bank. See McCulloch, 17 U.S. at 372–73. back
Alison L. LaCroix, The Shadow Powers of Article I, 123 Yale L.J. 2044, 2061 (2014) (describing McCulloch as “the lodestar for understanding the [Necessary and Proper] clause” ); Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 814 (1996) ( “Analysis of the Necessary and Proper Clause has historically begun and ended with McCulloch.” ). back
17 U.S. (4 Wheat.) at 401. back
Id. at 406–07. back
Id. at 414–17. back
Id. at 415–16, 418. back
Id. (emphasis omitted). back
Id. at 418. back
Id. at 421. Five years later, the Court extended McCulloch to hold that Congress may not only incorporate banks but further confer upon them any powers or privileges that are essential to their effective operation. Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 862 (1824). For later development of this doctrine, see, e.g., Pittman v. Home Owners’ Loan Corp., 308 U.S. 21, 32–33 (1939) ( “Congress has not only the power to create a corporation to facilitate the performance of governmental functions, but has the power to protect the operations thus validly authorized [by granting immunity from state taxation.]” ); Watters v. Wachovia Bank, N.A., 550 U.S. 1, 15 (2007) (holding that Congress may exempt national banks from state licensing, registration, and inspection requirements). back