The Powers of the National Government

This chapter examines three major national powers: the power to regulate interstate commerce, the power to tax and spend, and the power over foreign affairs. This triumvirate of federal powers, although not exclusive, represents the major and most frequently exercised and examined grants of authority found in the body of the Constitution. Moreover, the judicial treatment of these powers also provides a general sense of the Court’s approach to assessing the scope of national powers. We begin our discussion, however, with an important prelude—the Necessary and Proper Clause (Art. I, §8, cl. 18)—a provision that has been interpreted to give the national government substantial though not unlimited discretion in the implementation of its granted powers. Overall, one should get the sense from this chapter that at least until recently, the limited nature of the federal government has been more often a theory than a fact.

§5.2 THE NECESSARY AND PROPER CLAUSE

As was noted above, Article I, §8 contains the bulk of the powers granted to the national government. Those granted powers are described in seventeen separate paragraphs or clauses, each focusing on a particular subject matter or cluster of subject matters. For example, one clause grants Congress the power “To establish Post Offices and post Roads,” while another grants the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Art. I, §8, cls. 7 & 11. The final clause of Article I, §8, generally referred to as the Necessary and Proper Clause, is different. It grants Congress the 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.” This clause does not vest regulatory or supervisory authority over any particular subject matter; rather, it guarantees a latitude of discretion in the exercise of all other granted powers (including those granted in other parts of the Constitution). By so doing, the Necessary and Proper Clause ensures that the particularized grants can be exercised completely and effectively.

Example 5-A

As part of its effort to improve postal services in rural communities, Congress has delegated to the U.S. Postal Service an authority to exercise the power of eminent domain to procure land for new and expanded post office facilities in those communities. The Constitution grants Congress the power to “establish Post Offices and post Roads.” It does not, however, mention anything about a power of eminent domain. Does the congressional action represent an appropriate exercise of constitutional power?

Explanation

Yes. Under the Necessary and Proper Clause, the power of eminent domain may be exercised as a means to ensure that the power to establish post offices can be exercised completely and effectively.

The key case interpreting the Necessary and Proper Clause is McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). The opinion was authored by Chief Justice John Marshall and contains some of his most powerful and creative rhetoric. It is also one of the pillars of modern constitutional law. Specifically at issue in McCulloch was the constitutionality of a state law that taxed the activities of the Second Bank of the United States, a federally chartered financial institution. The first question to be resolved was whether the Constitution granted Congress the power to charter the bank. The Court began its discussion of this issue by affirming the principle that the national government may act only pursuant to an enumerated power. Id. at 405-406. Yet despite the absence of any specific constitutional grant of power to charter a bank or a corporation, the Court upheld the authority of Congress to do so.