Section 8 of Section 1 is not a set of non-contiguous legislative powers. Its clauses were originally drafted by the Detail Committee, which had been instructed by the Philadelphia Convention of 1787 that Congress would have the power to legislate “in all cases for the general interests of the Union, and also in cases where states are separately incompetent.” This wording suggests a context or structural principle of constitutional interpretation – the principle of collective action – that can assist in interpreting the provisions of Section 8. The principle of collective action reflects the main reason why the drafters created a national government with much more authority than it possessed under the Articles of Confederation. See Robert D. Cooter & Neil S. Siegel, Collective Action Federalism, A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115 (2010). What statement about the necessary and appropriate clause is correct? Teach the Constitution in your classroom with unbiased resources such as videos, lesson plans, podcasts, and more. Consult our educational resources, organized by article or amendment and by important constitutional issues. The latter power – the necessary and appropriate clause – promotes Article 8`s vision of effective collective action in three ways. First, the clause emphasizes that Congress has the power not only to directly resolve collective action issues using its enumerated powers, but also to pass laws that do not solve those problems on their own, but that are practical or useful in putting into practice the powers of Congress that do so.
The Constitution lists a variety of congressional powers, ranging from seemingly large powers such as powers to regulate interstate and foreign trade to seemingly smaller powers such as the power to establish post offices and postal routes. But there are many powers that most people today or in 1788 (when the Constitution was ratified) would expect Congress to exercise that are not part of these enumerations. The Constitution assumes that there will be federal departments, offices, and officials, but there is no clause explicitly giving Congress the power to create them. Congress is given specific powers to punish counterfeiting and piracy, but there is no explicit blanket authorization to impose criminal – or civil – penalties for violations of federal laws. Several constitutional provisions give Congress considerable authority over the nation`s finances, but no clause deals with a national bank or federal corporation. To exercise exclusive legislation in all cases, over a district (not more than ten square miles) which, by the cession of certain states and the adoption of Congress, may become the seat of the Government of the United States, and to exercise the same authority in all places, which is determined by the consent of the legislature of the State in which it is to be, were acquired for the construction of forts, stores, arsenals, shipyards and other necessary buildings; And the drafters wrote Section 8 to address the serious problems of collective action faced by states in the 1780s. Above all, they wanted to protect states from each other in the commercial sector and from European powers in the military field. States acted individually when they had to act collectively by discriminating against interstate trade and taking advantage of other states` contributions to the Treasury and the military. Moreover, Congress did not have the power to deal with these issues. Section 8 gave Congress the power, including the power to tax, regulate, establish, and sustain an army, and “to enact all laws necessary and appropriate to enforce the aforementioned powers, and all other powers conferred by this Constitution on the Government of the United States or any department or officer thereof.” However, all this presupposes that the correct way to interpret the necessary and correct clause is to dismantle their individual words and give each key term an independent meaning. This is not the only way to interpret the article.
Instead, one could view the clause as a single, undifferentiated provision and try to recognize the range of laws that the clause, viewed holistically and deliberately, seeks to authorize. As with almost all plausible constitutional principles, it is not always easy to apply the distinction between principled constitutional powers and random constitutional powers. This is a narrow question as a question of original importance, for example, whether Congress can include a National Bank as an incident in its listed financial powers. But some questions are simple. Congress can clearly create federal offices and impose sanctions for violations of federal laws as incidents for its primary powers. Congress also clearly cannot use the necessary and appropriate clause to force people to buy products from others, as Congress did with the individual mandate of the Patient Protection and Affordable Care Act (“Obamacare”). The power to force people to do business with others is a “great material and independent power” – which is why the Constitution lists it as the main power in a limited context by giving Congress explicit power to “collect and collect taxes.” Similarly, the power to detain a person in prison after the expiry of his or her sentence, in United States v. Comstock (2010), is obviously a force of principle rather than a force of principle. The power to regulate internal trade, which establishes much of the modern federal regulatory system, can also be seen as the primary authority.
If this is the case, no necessity, convenience or helpfulness can turn force majeure into an incident. The separation of powers element confirms that Marshall C.J. in McCulloch v. Maryland (1819), correctly interpreted the word “necessary” in the necessary and appropriate clause to mean practical or useful, not indispensable. Any creation or reorganization of federal departments in American history had to be “necessary” for the exercise of the powers conferred on the federal government. Instead of being indispensable, everyone was a convenient way to organize the executive. See Jack M. Balkin, Living Originalism 179 (2011). The necessary and appropriate clause, which gives Congress the power to enact “all laws that are deemed necessary and appropriate for the implementation in the execution” of other federal powers, is precisely this type of ancillary power clause.
It was designed by a detail committee consisting of four practicing lawyers familiar with drafting agency documents and a businessman familiar with their application. The wording of the clause, which requires random laws of Congress to be both “necessary and appropriate” in conjunction, was one of the most restrictive or limited wordings for ancillary powers available in the late eighteenth century, although it was more generous than the articles of Confederation, which expressly prohibited any random power by authorizing the exercise of only expressly granted powers. So far, the discussion has focused on the “federalism” component of the necessary and appropriate clause – its effects on relations between the Federation and the Länder. The third way the clause advances the principle of collective action is through its “separation of powers component” – its impact on the relationship between Congress and other branches. The part of the clause that authorizes Congress to “enact all laws necessary and appropriate for its implementation. any other power conferred by this Constitution on the Government of the United States or any department or officer thereof,” confers on Congress broad powers to structure the executive and judicial powers. Thus, Congress decided “how many cabinet departments would fill the executive; how [they] would be shaped and limited; how many judges would make up the Supreme Court; [and] where and when the Court would sit. Akhil Reed Amar, America`s Constitution: A Biography 111 (2005). . . .