What are the pros and cons of the elastic clause?

Answer 1

The necessary and proper clause (also known as the elastic clause, the basket clause, the coefficient clause, and the sweeping clause [1]) refers to a provision, in Article One of the United States Constitution at section eight, clause 18, which addresses implied powers of Congress.

Article I, Section 8, "Clause" 18 states that: The Congress shall have 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.

Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers ("foregoing powers"). Strict constructionism is a philosophy of judicial interpretation and legal philosophy that limits judicial interpretation to the meanings of the actual words and phrases used in law, and not on other sources or inferences. Adherents look strictly at the text in question rather than relying either on legislative intent (as gleaned from contemporaneous commentaries or legislative debate) or on metaphysical ideas such as natural law. Some of the doctrine's most forceful proponents have been Supreme Court of the United States Justice Hugo Black and former U.S. Chief Justice William Rehnquist, and Chief Justice of Australia, Owen Dixon. The underlying argument behind strict constructionism is that if a legislature truly wants to enact a particular law, they are capable of writing it down in plain English and passing it, and it is not the job of the judiciary to reconstruct what the legislature's intent could have been. Supporters interpret this position as judging based on what the law is, not what it should be. Supreme Court Justice Hugo Black wrote in Reid v. Covert, 354 U.S. 1, 5 -6 (1957), "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source."

Others argue that the elastic clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers. It is often known as the elastic clause because of the great amount of leeway in interpretation it allows; depending on the interpretation, it can be used to "stretch" or expand the powers of Congress, or allowed to "contract," limiting Congress.

The chartering of the Bank of the United States led to a defining legal interpretation of the Necessary and Proper Clause. Although the Constitution does not explicitly give Congress the authority to establish a national bank, the move was justified by proponents as a "necessary and proper" exercise of Congress' authority to make laws regulating interstate commerce under the commerce clause. the court held that because the Congress has the power to control national economic policy, creating a national bank is necessary and proper to carry out its duties.

The clause has been paired with the Commerce Clause in particular to provide the constitutional basis for a wide variety of laws. For example, legislation making it a federal crime to transport a kidnapped person across state lines is justified by considering the act to be commerce. A series of Supreme Court decisions resulting in the desegregation of private businesses, such as hotels and restaurants, was supported on the basis that these business establishments, although not directly engaged in interstate commerce, no doubt had an effect on it.

An important point to keep in mind is that the Necessary and Proper Clause does not require that all federal laws be necessary and proper. It has always been understood that federal laws that are enacted directly pursuant to one of the express enumerated powers need not comply with the Necessary and Proper Clause. As Chief Justice Marshall put it, this Clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted." McCulloch v. Maryland, 17 U.S. 316, 420 (1819) quoted in Printz v. United States, 521 U.S. 898 (1997) (Stevens, J., dissenting, joined by Souter, Ginsburg & Breyer, JJ.).

In summary the Pro of the Elastic Clause is that it purports to enlarge, not to diminish the powers vested in the government and purports to be an additional power, not a restriction on those already granted. The Con of the Elastic Clause is that Congress takes the stand that it is not the job of the judiciary to reconstruct what the legislature's intent could have been. Supporters interpret this position as judging based on what the law is, not what it should be. But, from what Supreme Court Justice Hugo Black wrote in Reid v. Covert, 354 U.S. 1, 5 -6 (1957), "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source."

Right, wrong, or indifferent, though, one can see the processes of "checks and balances" of our government at work in maintaining the integrity of our Constitution..