FEDERAL ABUSE OF "NECESSARY AND PROPER" CLAUSE
By Mary E. Webster
April 11, 2014
I am one of the people who feel really discouraged by the abuses of power by the current federal government. The overreaching, tyrannical power grabs by the federal government have been increasing over the decades until now, when it no longer just effects our time and money, it is detrimental to our health!
We cannot blame just the politicians and appointees within the federal government. We should expect that they will want to draw in as much power and benefits possible. It is a part of the nature of most people who are drawn to the political arena. When we think of the morals and ethics of our first president, we must also remember that he was drafted into serving. He did not pursue the office and the glory.
And we, the citizens, cannot do not hold all the blame, either. Most citizens are way too busy taking care of their families and working hard to make Constitutional issues a part of our daily lives.
The education system and the press hold a lot of blame for our current dilemma. Writing about this subject reminded me to a WSJ commentary posted on January 7, 2011:
The author says: “the framers said Congress would have 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.’
“We can surely disagree about how big our government should be, but that's a question for the living to decide, not the dead. The dead have spoken: The Congress has the authority to impose taxes, to regulate commerce, and to do whatever is necessary and proper to create a more perfect union.”
This is a perfect example of the sloppy thinking and writing that created the massive abuse of power by the federal government that we currently face. “Do whatever is necessary and proper to create a more perfect union”? Whatever? Create a more perfect union?
This is the kind of “interpretation” that leads of “affordable health care.”
The authors of the Federalist Papers knew that some people would use the “necessary and proper” clause and the “supreme law of the land” clause to expand the role of the federal government into unconstitutional areas. When you read the clause carefully, it seems pretty clear. But Federalist Paper Number 33 really hones in on its meaning:
[The "necessary and proper" and "supreme law of the land"] clauses have been vehemently denounced. Using exaggeration and misrepresentation, opponents say these clauses will destroy both local governments and individual liberties. They are seen as monsters that will devour everyone.
However, they only declare a truth. The act of creating a federal government and giving it specific powers implies these clauses. The constitutional operation of the proposed government would be precisely the same if the clauses were removed or if they were repeated in every article.
The term "power" means having the ability to do something. "Legislative power" means that the legislature will have the power to make laws.
Article One, Section 8 says, "Congress shall have power to lay and collect taxes." Therefore, it is a legislative power. In other words, a power to make necessary and proper laws about taxes.
By following this simple reasoning, we can judge the true meaning of the controversial clause. The truth is obvious: the power to lay and collect taxes includes all laws necessary and proper to execute that power. The "necessary and proper" clause in the Constitution only restates this obvious conclusion. (This clause is sometimes called the "sweeping clause.")
I'm using the taxation example because taxation is our current subject and taxation is the government's most important authority. But the same reasoning applies to every power in the Constitution. The "necessary and proper" clause authorizes the national legislature to pass those laws that are necessary and proper to execute the powers listed in the Constitution.
Any objection must be to the specific powers, not the general declaration. The declaration may be redundant, but it is harmless.
But suspicious people may ask why the "necessary and proper" clause was added to the Constitution. It could have been put in the Constitution to guard against attempts to limit and evade the legitimate authorities of the Union. The greatest threat to our political welfare is the State governments sapping the foundations of the Union. Therefore, on this important point, perhaps the convention wanted to leave nothing to interpretation.
Who judges whether federal laws are necessary and proper?
First, if we removed the "necessary and proper" clause, we can still ask the question about the powers themselves. Second, the national government, the States, and the citizens must judge the proper exercise of its powers.
If the federal government overreaches its authority and uses its power tyrannically, the people, who created it, must go to the Constitution. They must correct the injury done to the Constitution. To determine if a law is Constitutional, we must look at whether the law is based on Constitutional powers.
Suppose the federal legislature attempts to change the law of descent in a State. Clearly, this is outside the federal government's jurisdiction and would trespass on the State's authority.
Or suppose that the federal government tries to abolish a State's property tax, saying it interferes with federal revenues. This would be an invasion of the concurrent tax jurisdiction. #33, [paragraphs 2-6]
Education is our first line of defense against federal power usurpation. It takes education to then follow the founders’advise:
What will happen if Congress misconstrues the “necessary and proper” clause and exercises powers not warranted by its true meaning?...First, the power usurpation will only succeed if the executive and judiciary departments, which execute and interpret legislative acts, support it.
And in the last resort, the people will remedy the problem; they can elect more faithful representatives, who can annul the acts of the usurpers…every federal usurpation will invade the rights of a State. The States will notice deviations, sound the alarm, and use their influence to change federal representatives…" #44 
© 2014 Mary E. Webster - All Rights Reserved
Mary E Webster, a graduate of St. Paul College and the University of Iowa, started studying The Federalist Papers in 1994. Her books, including a 10th-grade reading level translation of the Papers, The Federalist Papers: Modern English Edition Two, and The U.S. Constitution: Annotated with The Federalist Papers in Modern English make the timeless arguments within the Papers available to everyone. Webster is related to Noah and Daniel Webster and a direct descendent of several signers of the Mayflower Compact.
Email: [email protected]