Political Crossfire Forums

[LostSoul3412]

Also referred to as the "Necessary and Proper" Clause, which gives federal Congress the power to enact any legislation that it feels is both necessary and proper to the well being of the country.

Am I the only one that sees a problem here?

The Elastic Clause has always been a blank check for power in the hands of Congress, and needs to be repealed. In essence, this clause gives the federal government the power to do... well... anything. If they are the ones determining what exactly is "necessary and proper", what's stopping them from enacting legislation that... I don't know... allows the government to tap communications, suspend habeas corpus rights of American citizens and hold them off shore as "enemy combatants", suspend freedom of speech, suspend the rights to bear arms, suspend rights to trial by jury, suspend rights to an attorney, suspend rights to private property, ect. ect.

Under the Elastic Clause, Congress has the power to do any of those thing; even violate the Constitution if they deem it "necessary and proper".

[Medius]

LostSoul3412 wrote: Also referred to as the "Necessary and Proper" Clause, which gives federal Congress the power to enact any legislation that it feels is both necessary and proper to the well being of the country.

Am I the only one that sees a problem here?

The Elastic Clause has always been a blank check for power in the hands of Congress, and needs to be repealed. In essence, this clause gives the federal government the power to do... well... anything. If they are the ones determining what exactly is "necessary and proper", what's stopping them from enacting legislation that... I don't know... allows the government to tap communications, suspend habeas corpus rights of American citizens and hold them off shore as "enemy combatants", suspend freedom of speech, suspend the rights to bear arms, suspend rights to trial by jury, suspend rights to an attorney, suspend rights to private property, ect. ect.

Under the Elastic Clause, Congress has the power to do any of those thing; even violate the Constitution if they deem it "necessary and proper".

Just because they may enact legislation does not mean that they may step oustide of their powers. Additionaly the Executive branch may not overstep it's powers either.

The Elastic Clause only seems big because you, like most other Americans, have come to accept that the bloated entity that we call a federal government is within its constitutional construct.

If they were able to legislate outside of the constitution then there would have been no need for amendments to the constitution at all.

[LostSoul3412]

Medius wrote: Just because they may enact legislation does not mean that they may step oustide of their powers. Additionaly the Executive branch may not overstep it's powers either.

Really? Then how do you explain the Tonkin Resolution? Or the Patriot Act? Or the fact that the president is able to deploy troops without consent from Congress? Or how the NSA has the power to suspend habeas corpus? The government has every power to overstep themselves, so long as it's "necessary and proper".

Medius wrote: The Elastic Clause only seems big because you, like most other Americans, have come to accept that the bloated entity that we call a federal government is within its constitutional construct.

The Elastic Clause is important because it gives the federal government power to overstep those Constitutional bounds. The federal government was a Constitutional construct, dependent on both the people and the states, but now it has become an autonomous body; separate of both the states and the people.

Medius wrote: If they were able to legislate outside of the constitution then there would have been no need for amendments to the constitution at all.

Sure there is; to keep the legitimacy of the people.

[Medius]

LostSoul3412 wrote: Medius wrote: Just because they may enact legislation does not mean that they may step oustide of their powers. Additionaly the Executive branch may not overstep it's powers either.

Really? Then how do you explain the Tonkin Resolution? Or the Patriot Act? Or the fact that the president is able to deploy troops without consent from Congress? Or how the NSA has the power to suspend habeas corpus? The government has every power to overstep themselves, so long as it's "necessary and proper".

Medius wrote: The Elastic Clause only seems big because you, like most other Americans, have come to accept that the bloated entity that we call a federal government is within its constitutional construct.

The Elastic Clause is important because it gives the federal government power to overstep those Constitutional bounds. The federal government was a Constitutional construct, dependent on both the people and the states, but now it has become an autonomous body; separate of both the states and the people.

Medius wrote: If they were able to legislate outside of the constitution then there would have been no need for amendments to the constitution at all.

Sure there is; to keep the legitimacy of the people.

I can give you the simple explanation: They can't.

Sure, congress can pass whatever legislation they would like. The president can even approve of that legislation. If it is not in line with the constitution however, it is null and void. The problem isn't that the constitution gives too much power, but rather that the people don't enforce the constitution. We vote for people that blatantly disregard our rights and expand their own powers.

[LostSoul3412]

Medius wrote: I can give you the simple explanation: They can't.

Sure, congress can pass whatever legislation they would like. The president can even approve of that legislation. If it is not in line with the constitution however, it is null and void. The problem isn't that the constitution gives too much power, but rather that the people don't enforce the constitution. We vote for people that blatantly disregard our rights and expand their own powers.

So what's stopping them? The only thing keeping them in line is Judiciary Review; something that has become increasingly... underrepresented, in recent years.

[Medius]

LostSoul3412 wrote: Medius wrote: I can give you the simple explanation: They can't.

Sure, congress can pass whatever legislation they would like. The president can even approve of that legislation. If it is not in line with the constitution however, it is null and void. The problem isn't that the constitution gives too much power, but rather that the people don't enforce the constitution. We vote for people that blatantly disregard our rights and expand their own powers.

So what's stopping them? The only thing keeping them in line is Judiciary Review; something that has become increasingly... underrepresented, in recent years.

Well, since private citizens can no longer bring suit against the government, really nothing. Short of getting the public to become less stupid and vote appropriately, there isn't a whole lot that can be done. Voicing your opinion and voicing it loudly might help.

[LostSoul3412]

Medius wrote: Well, since private citizens can no longer bring suit against the government, really nothing. Short of getting the public to become less stupid and vote appropriately, there isn't a whole lot that can be done. Voicing your opinion and voicing it loudly might help.

So long as the government doesn't pass a "necessary and proper" law that bans our right to redress the government for grievances... (First Amendment, anyone?)

[bigstick61]

It doesn't actually grant very much power at all. It merely allows Congress to do what is both necessary and proper to enforce Federal laws, such as establishing executive departments, and such. The way in which it has been interpreted by liberal judges to mean is that Congress can do whatever it feels is necessary and proper, period. Of course, such an interpretation is erroneous, and even the authors of the Constitution in the Federalist Papers stated that this is not what the clause does.

Despite the way it's been perverted, as have many other parts of the Constitution, I'm against repeal because Congress would be powerless to establish a means to enforce the law, rendering the laws they pass relatively useless. Very few would be able to be executed. This was one of the weaknesses of the Articles of Confederation and why this clause was put into the Constitution. You want a limited central government, but you don't want it to be toothless, as that would be detrimental to the Union.

[political scientist]

What frightens me the most about the Elastic Clause is not the fact that the government expands its power, but rather, the fact that the American public is too apathetic to rise up and speak out against anything that is not right. Do people fear another Kent State incident? Do they feel their voices cannot make a difference? Or do they just not care about the present and future state of their country? I tend to think its a bit of all three, especially choice #3; what do you guys think?
Regardless of the reason, the lack of presence from the American public is leaving these political fat cats unanswerable to anyone. The most important check and balance is not within the three branches of government, but rather the people's choice of who to elect, who to recall, what to support or not support, etc. The lack of opposition has allowed the government to adopt the following wartime policies: The Alien and Sedition Act (WWI), Executive Order 9066(WWII), the whole "Red Scare", McCarthyism, and Blacklisting(Cold War), and now the PATRIOT Act. Each of these has been used to fight some kind of ism. WWI- Imperialism, WWII- Nazism, Fascism, and Militarism, Cold War- Communism, and now- Terrorism. What will be the next ism we fight against and what will be the wartime law passed "for our own security" that will give the government the power to violate our constitutional rights that were granted to us by our wise forefathers?
If the public does not pay attention and stand up for their rights, we may lose them forever.

~Political Scientist

[Jimmy Madison]

Quote: Of course, such an interpretation is erroneous, and even the authors of the Constitution in the Federalist Papers stated that this is not what the clause does.


By "authors of the Constitution" you must be assuming Hamilton does not qualify? Because Hamilton took a much broader interpretation of the necessary and proper clause than did Madison or Jefferson. This poignant difference of opinion was illuminated in the debate over the proposed legislation to create a national bank. Of course I think the proper interpretation was Madison's and law school professor Randy Barnett composed an article on the Necessary and Proper clause. It is an article accessible on the web and a good one to read.

[LostSoul3412]

bigstick61 wrote: Despite the way it's been perverted, as have many other parts of the Constitution, I'm against repeal because Congress would be powerless to establish a means to enforce the law, rendering the laws they pass relatively useless.

Why is the federal government worrying about that anyway? If anything, law enforcement should be a state concern.

bigstick61 wrote: Very few would be able to be executed. This was one of the weaknesses of the Articles of Confederation and why this clause was put into the Constitution. You want a limited central government, but you don't want it to be toothless, as that would be detrimental to the Union.

I'm not saying make it toothless, and I'm not advocating for the Articles of Confederation; pretty much everyone agrees that was a bust. The point I'm making is that the federal government should be limited to doing only what is necessary in facilitating between the states. Everything else, state's rights. That includes law enforcement.

[bigstick61]

The enforcement and execution of Federal laws is a legitmate function of the Federal government. Otherwise, there would be no executive. A President would still be there, but he would have no executive role.

[LostSoul3412]

bigstick61 wrote: The enforcement and execution of Federal laws is a legitmate function of the Federal government. Otherwise, there would be no executive. A President would still be there, but he would have no executive role.

Chief ambassador, the power to recognize other nations, the power to negotiate treaties, power to pardon, power of legislative veto, power to appoint civil servants; all of these are powers that the current Constitution would still allow that have nothing to do with executing laws.

[Medius]

I have to admit, in my readings I have found little that supports the idea that the Executive Branch is intended to be involved in actual law enforcement.

In the constitution you have a single part of a line that suggests that the president should dutifully execute the laws. In the federalist papers this line isn't even expounded upon with any detail whatsoever.

It is my belief that the need for law enforcement (of the people) from the executive branch has arisen as a direct effect of the infringement upon states rights by the federal government through the abuse of the "elastic clause".

[bigstick61]

The President is the Chief Executive, among other things. It is ultimately his responsibility to ensure that the laws are enforced/executed. What the necessary and proper clause allows is for the Congress to give the President the tools he needs to execute the laws. This is essentially how it is explained in the Federalist Papers. Without those tools, the President is powerless to enforce those laws, as he obviously can't go everywhere in person and ensure the law is carried out, as he is only one man. Hence, I'm sure you can see the propriety in having the necessary and proper clause. Without it, Congress could not give the President the toools he needs to do his duty.

[LostSoul3412]

bigstick61 wrote: The President is the Chief Executive, among other things. It is ultimately his responsibility to ensure that the laws are enforced/executed. What the necessary and proper clause allows is for the Congress to give the President the tools he needs to execute the laws. This is essentially how it is explained in the Federalist Papers. Without those tools, the President is powerless to enforce those laws, as he obviously can't go everywhere in person and ensure the law is carried out, as he is only one man. Hence, I'm sure you can see the propriety in having the necessary and proper clause. Without it, Congress could not give the President the toools he needs to do his duty.

Sure it does, but the problem is that the "duty" doesn't/shouldn't be at the federal level. If you're going to give power to an executive, give it to the governors of the states, and have the states carry out the laws of the national congress. The president's duty is a figurehead for the congress, not the iron fist of the government.

[Medius]

bigstick61 wrote: The President is the Chief Executive, among other things. It is ultimately his responsibility to ensure that the laws are enforced/executed. What the necessary and proper clause allows is for the Congress to give the President the tools he needs to execute the laws. This is essentially how it is explained in the Federalist Papers. Without those tools, the President is powerless to enforce those laws, as he obviously can't go everywhere in person and ensure the law is carried out, as he is only one man. Hence, I'm sure you can see the propriety in having the necessary and proper clause. Without it, Congress could not give the President the toools he needs to do his duty.

Yes, but what I am saying is that the scope of legislation has become corrupted. Enforcement is taken to the people on issues that should not be federal. Take a look at the clause again:

Quote: 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.

Now lets take a look at the scope of power:

Quote: The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

The actual scope of the legislative branch is pretty small. I see nothing in there that covers the FDA, ATF, or EPA. I see things that deal with interstate commerce and some civil defense. The only mention of felonies have to do with the high seas (outside of state jurisdiction).

The elastic clause is specifically limited to the powers vested by the constitution to the federal government. It's not that congress can't give teeth to the executive branch, it is that congress cannot give teeth to these phantom powers that are not vested by the constitution.

[the donnybrook]

Medius is the most correct with his original and final responses.

The necessary and proper clause is joined to the spending power. Essentially, this gives Congress the power to draft laws to implement their other enumerated abilities. Fundamentally, legislative power is limited by the scope of Article I. However, part of the Legislative power is a delegative power, which is what creates the FDA, FCC, and EPA. The idea is that Congress could not create laws which require regulation, and then operate as a regulative body. The corollary power prescribed to the President in these matters is the appointment power. While Congress creates the agencies, the President picks the leaders. At the same time, Congress has the power to regulate these administrations by creating other laws. The necessary and proper clause is the backbone that makes this legislation work, either by funding or creating an agency with delegated power.

To say that the necessary and proper clause is "elastic" is erroneous. First, the clause modifies the spending power. This means it is limited to creating the necessary funding or support for laws created by Congress. Second, Article I limits the kind of laws Congress can make. The logical result is that Congress can only make laws in areas prescribed by the Constitution. This limits the power to create laws and destroys the "elasticity" of the necessary and proper clause.

To more directly address the issue of expanding federal power, you have to look at the development of economics and the accommodations made by the law as a result. The commerce clause, which gives Congress the ability to regulate commerce, is the most powerful operational component of Legislative power. Congress can only regulate Interstate commerce, but the law has developed to allow this regulatory power to extend to anything that impacts interstate commerce, even on an indirect level. The result is a very expansive power to regulate many different kinds of activity that would otherwise be outside the purview of legislative authority. However, this is not an expansive power because the Supreme Court has limited this power when it is clearly against common sense. One example is a gun law restricting the possession of a gun within 1000 feet of a public school. This federal law was justified by the commerce clause, but had nothing to do with commerce. As a result, the Court limited Congress's power to create such a law.

The problem of elasticity is, at best, over stated. While it is something we should be concerned about in an abstract sense, the pragmatic effect does not go so far as to give Congress carte blanch to become an authoritarian body.

[the donnybrook]

A little side note upon further review of the all the posts in this thread, it is necessary to dispel some misinformation regarding the role of the President in our Constitutional structure. The President essentially operates as a police power. The concept of enforcing the laws is overblown in that it is assumed this means the Presidential office carries more weight than it really does. The Federalist makes clear that the President cannot act without the consent of the Congress. This is exemplified by the constitutional limitations on the executive war powers. The President has, for lack of better semantics, penultimate power. The political interplay of the system, however, creates the appearance of a more powerful executive. Think of the President as the police chief of the federal government. He is there to make sure the rules are followed once they are set out by Congress.

[bigstick61]

Great posts, donnybrook. I agree with your analysis. The problem today are liberal judges, who deliberately misinterpret the Constitution, essentially re-writing it; they don't stop with the necessary and proper clause, as most of the Constitution is interpreeted in such a manner these days. Part of the problem is the politicization of the judiciary, which is in part due to the fact that both the President and Senate are subject to direct popular influence nowadays, and hence, try to choose judges that the "people" would like, which means that the judiciary really isn't independent anymore.