Reading Room Document

"Necessary and Proper" Clause of the Constitution

The attorney general requested an analysis of the “necessary and proper clause,” including (a) the nature of the authorization to Congress under the clause; (b) “the extent to which the basic power has to be established; (c) and whether or not it [was] a grant of original power, or merely authority to carry out the enumerated powers.” The OLC concluded that: (a) as illustrated in McCulloch v. Maryland, the clause gives the federal government the discretion to pass legislation as long as the purpose of the legislation was legitimate and within the scope of the constitution, and the "means" of achieving that goal through legislation are "appropriate"; (b) that Congress has the "basic power" to enact legislation that is has "some relation between the means" and the purpose of the legislation; and (c) that the clause is not an independent grant of original power.

February 14, 1958