Chapter Eleven: Powers of Congress

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Chapter Eleven Powers of Congress

• Section Four
• The Implied Powers

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The Necessary Proper Clause

• Gives Congress the power to make laws to carry
  out the expressed powers of the Constitution
• Often called the Elastic Clause
• Has caused some problems throughout history

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Background

• Alexander Hamilton, Secretary of the Treasury,
  urged Congress to set up a national bank
• Congress does not have the power to set up a bank
• Hamilton said that Congress could use the NP
  Clause to set it up
• Linked to taxing, borrowing, commerce, currency

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More Background!

• 1791 Congress establishes the Bank of the
  United States
• 1816 Congress created the Second Bank of the
  United States
• Came after another hard-fought battle in Congress

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McCulloch v. Maryland, 1819

• Opponents of the new bank tried to cripple it
• Maryland placed a tax on all notes issued by a
  bank doing business in the State but not
  chartered by the State legislature
• James McCulloch, the cashier, deliberately issued
  notes on which no taxes had been paid

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McCulloch v. Maryland, 1819

• McCulloch was sued by Maryland for not following
  the tax
• McCulloch lost the US appealed to the Supreme
  Court
• Argument strict construction v. liberal
  construction
• Should we have implied powers?

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McCulloch v. Maryland, 1819

• Supreme Court overturned the decision of the
  Maryland courts
• Creation of the Second Bank necessary and
  proper to carry out the expressed powers of
  taxing, borrowing, commerce, and currency

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Doctrine in Practice

• Doctrine principle or fundamental policy
• Implied powers are almost too numerous to count
• Necessary and proper would read today as
  convenient and useful