Necessary and Proper Clause - Other Information

Other Information

The specific term "Necessary and Proper Clause" was coined in 1926 by Associate Justice Louis Brandeis, writing for the majority in the Supreme Court decision in Lambert v. Yellowley, 272 U.S. 581 (1926), wherein the court upheld a law restricting medicinal use of alcohol as a necessary and proper exercise of power under the 18th Amendment establishing Prohibition in the United States.

This phrase has become the label of choice for this constitutional clause, and it was universally adopted by the courts, and it received Congress's imprimatur in Title 50 of the United States Code, section 1541(b) (1994), in the purpose and policy of the War Powers Resolution.

The court in McCulloch v. Maryland held that all Federal laws need not be "absolutely necessary" to be necessary and proper, and noted that "The clause is placed among the powers of Congress, not among the limitations on those powers." At the same time, it reasserted the power of judicial review established in Marbury v. Madison, declaring that it had the power to strike down laws that departed from those powers: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."