To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;.
To exercise exclusive Legislation in all Cases whatsoever, over such District not exceeding ten Miles square as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And.
The alternative to a government of enumerated powers is, of course, a government of unenumerated powers. The Constitution might have said "Congress shall have all powers not specifically prohibited elsewhere in this Constitution.
It would be silly to say, for example, the "power to establish post offices" did not include the power to print postage stamps or pay mail carriers. But does it also include the power to advertise the joys of stamp collecting on television? How broadly or narrowly should the enumerated powers be read? Should the "Necessary and Proper Clause" be interpreted as authorizing actions rationally related to one of the listed powers, or only actions "necessary" to carrying out a listed power?
Thomas Jefferson had serious doubts as to whether the Constitution gave him the power to acquire land from France through the Louisiana Purchase, but he went ahead with the deal anyway. Was the Louisiana Purchase constitutional? What might be the constitutional source for the power to acquire lands? The case involved the question of whether Congress had the power to charter a bank.
At first, this question might seem inconsequential, but underlying it are larger questions that go to the foundations of constitutional interpretation. To some extent, they are still debated. The First Bank of the United States was established in , but it had failed in due to a lack of support from Congress. The new bank established branches throughout the states. Their directors sought assistance from their state legislatures to restrict the operations of the Bank of the United States.
Accordingly, Maryland imposed a tax on the bank's operations, and when James McCulloch, a cashier of the Baltimore branch of the Bank of the United States, refused to pay the Maryland tax, the issue went to court.
By the late eighteenth century, for example, the power to manage a farm presumptively included as an incident the power to lease the farm, but it did not presumptively include the power to sell the farm.
If you wanted to let an agent sell the farm, you needed to spell that out as a principal power in the document. As is true with almost any plausible constitutional principle, applying the distinction between principal and incidental constitutional powers is not always easy.
It is a close question as a matter of original meaning, for example, whether Congress can incorporate a national bank as an incident to its enumerated financial powers. But some questions are easy. Congress can clearly create federal offices and impose penalties for violation of federal law as incidents to its principal powers. Comstock , is patently a principal rather than incidental power.
The power to regulate intra-state commerce, which grounds much of the modern federal regulatory regime, may also qualify as a principal power. If so, no amount of necessity, convenience, or helpfulness can turn a principal power into an incident. For more detail on the claims in this statement, see Gary Lawson, Geoffrey P. Miller, Robert G. Forum Article I, Section 8, is not a collection of unrelated legislative powers.
The collective action principle reflects the primary reason why the Framers created a national government with substantially more authority than it possessed under the Articles of Confederation. See Robert D. The Framers wrote Section 8 to address serious collective action problems facing the states during the s. They especially wanted to protect the states from one another in the commercial sphere and from European powers in the military sphere. States acted individually when they needed to act collectively, discriminating against interstate commerce and free riding on the contributions of other states to the national treasury and military.
Moreover, Congress lacked the power to address those problems. First, the Clause underscores that Congress possesses the authority not just to directly solve collective action problems through use of its enumerated powers, but also to pass laws that do not themselves solve such problems but are convenient or useful to carrying into execution congressional powers that do. Such a prohibition solves collective action problems by, for instance, dis-incentivizing insurance companies from moving to states that allow them to deny coverage to people with pre-existing conditions.
A requirement to purchase insurance is convenient for carrying this valid Commerce Clause regulation into effect because it combats the perverse incentive people would otherwise have to wait until they became sick to purchase insurance.
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Liberal Politics U. Martin Kelly. History Expert. Martin Kelly, M. Updated August 14, Constitution provides Congress the power to fulfill its legal powers. Also known as the "elastic clause," it was written into the Constitution in The first Supreme Court case against the clause was in when Maryland objected to Alexander Hamilton's formation of a National Bank. The Necessary and Proper clause has been used in cases about many things, including challenges about Obamacare, legalizing marijuana, and collective bargaining.
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