Article 1, Section 8, Clause 1 — Modern Necessary And Proper Clause Doctrine

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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.

Building on the foundation established by McCulloch, modern Necessary and Proper Clause doctrine holds that the Clause permits any federal legislation that is “convenient” or “useful” to the exercise of federal power—that is, any “means that is rationally related to the implementation of a constitutionally enumerated power.” [1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn1art1 " United States v. Comstock, 560 U.S. 126, 134 (2010). ") The significance of this broad understanding of McCulloch on the powers of the Federal Government is difficult to overstate.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn2art1 " See, e.g., David S. Schwartz, Misreading McCulloch v. Maryland, 18 U. Pa. J. Const. L. 1, 3 (2015) (describing universal view of McCulloch as “a decision of the highest importance in American constitutional law” ); Daniel A. Farber, The Story of McCulloch: Banking on National Power, 20 Const. Comment. 679 (2004) ( “Many scholars consider [McCulloch] the single most important opinion in the Court’s history.” ); Jack M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963, 987 (1998) ( “At least within the field of constitutional law, almost everyone seems to agree that McCulloch is canonical.” ). ") Much federal law rests on the foundation established by McCulloch, and practically every power of the Federal Government has been expanded in some degree by the Necessary and Proper Clause.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn3art1 " See, e.g., Kurt T. Lash, The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and “Expressly” Delegated Power, 83 Notre Dame L. Rev. 1889, 1942 (2008) ( “[In McCulloch, Chief Justice Marshall] articulated a vision of federal power not only expansive for its day, but expansive enough to become the foundational theory of the modern administrative state.” ); Felix Frankfurter, John Marshall and the Judicial Function, 69 Harv. L. Rev. 217, 219 (1955) ( “One can, I believe, say with assurance that a failure to conceive the Constitution as Marshall conceived it in [McCulloch], to draw from it the national powers which have since been exercised and to exact deference to such powers from the states, would have been reflected by a very different United States than history knows.” ); see also supra note 2 (sources discussing the influence and importance of McCulloch).

Moreover, later amendments to the Constitution, including the Civil War Amendments, drew on McCulloch's language to empower Congress to enforce their provisions by “by appropriate legislation.” U.S. Const. amends. XIII, § 2; XIV, § 5; XV, § 2; XIX, § 2; XXIII, § 2; XXIV, § 2; XXVI, § 2. For the connection between McCulloch and the term “appropriate legislation,” see, for example, Cong. Globe, 39th Cong., 1st Sess. 1118 (1866) (statement of Rep. Wilson) (equating “appropriate” as used in section two of the Thirteenth Amendment with “necessary and proper” and citing McCulloch); Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) ( “[T]he McCulloch v. Maryland standard is the measure of what constitutes ‘appropriate legislation’ under § 5 of the Fourteenth Amendment.” ); The Civil Rights Cases, 109 U.S. 3, 51 (1883) (Harlan, J., dissenting) ( “The word appropriate was undoubtedly used with reference to its meaning, as established by repeated decisions of th[e] [C]ourt.” (citing McCulloch)); Ex parte Virginia, 100 U.S. 339, 346 (1879) (defining “appropriate legislation” by paraphrasing the McCulloch standard).

") Under the authority granted it by the Clause, Congress has adopted measures required to comply with treaty obligations,[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn4art1 " Missouri v. Holland, 252 U.S. 416, 432 (1920) (holding that congressional statutes to implement a treaty are valid under the Necessary and Proper Clause so long as the treaty is valid); Neely v. Henkel, 180 U.S. 109, 121 (1901) (observing that the Necessary and Proper Clause empowers Congress to “enact such legislation as is appropriate to give efficacy” to a treaty with a foreign power). ") organized the federal judicial system,[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn5art1 " Jinks v. Richland Cty., 538 U.S. 456, 461–64 (2003) (holding that federal courts may exercise supplemental jurisdiction, including tolling of state statutes of limitation, pursuant to Article III and the Necessary and Proper Clause); Willy v. Coastal Corp., 503 U.S. 131, 136–37 (1992) (holding that federal courts may impose sanctions on litigants pursuant to Article III and the Necessary and Proper Clause, even if it is later determined that the court lacked subject matter jurisdiction); Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32 (1988) (holding that the federal transfer statute is “comfortably with Congress'[s] powers under Article III as augmented by the Necessary and Proper Clause” ); Burlington N. R.R. v. Woods, 480 U.S. 1, 5 n.3 (1987) ( “Article III of the Constitution, augmented by the Necessary and Proper Clause of Article I, § 8, cl. 18, empowers Congress to establish a system of federal district and appellate courts and, impliedly, to establish procedural Rules governing litigation in these courts.” ); see also Artis v. District of Columbia, No. 16-460, slip op. at 16–18 (2018) (reaffirming Jinks). ") regulated intrastate matters that substantially affect interstate commerce,[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn6art1 " See, e.g., Gonzales v. Raich, 545 U.S. 1, 17–22 (2005) (holding that Congress had authority to criminalize intrastate possession of marijuana under the Commerce and Necessary and Proper Clauses); see generally through . ") seized property pursuant to its taxing powers,[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn7art1 " Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 281 (1856) ( “The power to collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the constitution.” ). ") and exercised the power of eminent domain to acquire private property for public use.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn8art1 " Kohl v. United States, 91 U.S. 367, 372–73 (1876) ( “[T]he right of eminent domain exists in the Federal government . . . so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.” ). ")

Perhaps most notably, nearly all federal criminal law that applies outside of federal enclaves[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn9art1 " See , , and . ") relies on the Necessary and Proper Clause.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn10art1 " See United States v. Comstock, 560 U.S. 126, 135–36 (2010). ") The Constitution expressly empowers Congress to punish only four crimes: counterfeiting, piracies, offenses against the law of nations, and treason.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn11art1 " See U.S. Const. art. I, § 8, cls. 6, 10; id. art. III, § 3, cl. 2. ") The remainder of the federal criminal code—prohibitions on, for example, tax evasion, racketeering, mail fraud, and drug possession[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn12art1 " See, e.g., 18 U.S.C. §§ 1341–51 (mail fraud and wire fraud); id. §§ 1951–68 (racketeering); 21 U.S.C. § 844 (drug possession); 27 U.S.C. § 7201 (tax evasion). ") —rests on a determination that criminalization is necessary to effectuate congressional power to regulate interstate commerce, collect taxes, establish post offices, spend for the general welfare, or some other enumerated federal power.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn13art1 " For example, the Supreme Court has upheld federal laws criminalizing the alteration of registered bonds, Ex parte Carll, 106 U.S. 521 (1883), the bringing of counterfeit bonds into the country, United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850), conspiracy to injure prisoners in custody of a United States Marshal, Logan v. United States, 144 U.S. 263, 282–84 (1892), impersonation of a federal officer with intent to defraud, United States v. Barnow, 239 U.S. 74, 77–80 (1915), conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States, Ex parte Yarbrough, 110 U.S. 651, 657–59 (1884), and the receipt by government officials of contributions from government employees for political purposes, Ex parte Curtis, 106 U.S. 371, 373–75 (1882). ") For example, as necessary and proper to Congress’s authority under the Spending Clause, Congress may criminalize bribery of state and local officials receiving federal funds.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn14art1 " Sabri v. United States, 541 U.S. 600, 606 (2004). ") Or, as necessary and proper to its power to regulate interstate commerce, Congress may prohibit intrastate cultivation and use of controlled substances such as illegal drugs.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/modern-necessary-and-proper-clause-doctrine#fn15art1 " Gonzales v. Raich, 545 U.S. 1, 5, 22 (2005). ")

In United States v. Comstock, the Robe