Legislative Branch Power, Its Limits and Expansion Essay

October 14, 2020 by Essay Writer


The constitution of United States is of federalist set up where the states and the federal government share power. The federal government powers are limited and enumerated in the constitution. The “necessary and proper” clause is the last paragraph in article 1, section 8 of the United States constitution. This clause gives implied powers of execution to the federal government. The implied powers are not in the constitution but exist as they are necessary when implementing the articulated powers. The clause provides the federal government with power to make laws that are deemed as necessary and proper. This means that the congress can make laws on anything under the constitution, and this expands the federal powers (Gresham 28).


The clause has two main purposes. First, the clause facilitates government organization through permitting congress to organize the judicial branch. The second purpose is to carry out other enumerated congress powers. The congress can make law on anything outside of the stipulated powers if those laws are necessary and proper (Gresham 28).

John Marshall served as the chief justice of the Supreme Court from 1801-1835. During his tenure, the opinion from the court were used to lay the constitution laws. He is remembered for promoting for the supremacy of the federal laws over the state laws. Marshall’s influential rulings strengthened the supreme courts making them the final reference in the constitution interpretation.

McCulloch v. Maryland in 1819 was the first case in Supreme Court where the necessary and proper clause was applied. The congress in 1790 established a banking corporation to enhance tax collection, promote commerce and support the army. Maryland State executed paying of tax by all the banks operations. James McCulloch a cashier at the bank of United States refused to pay the tax, and the matter went to court.

The case raised the question on whether the congress had the power to charter a bank. Hamilton, the secretary of the treasury was on opinion that congress should exercise the implied powers. Jefferson, the secretary of state, on the other hand, was concerned by the idea a single branch of the government having too much power. Jefferson’s interpretation was on strengthening the states right while Hamilton’s favored a strong federal government (Simon 120).

The court ruled that the state of Maryland was not to undermine the act of congress. The ruling established that the court could use the necessary and proper clause to create banks even though it is not stated in the constitution. McCulloch v. Maryland has raid down the theory of implied powers under the written constitution. John Marshall supported Hamilton and rejected the views of Jefferson, and this endorsed the federal government power. The ruling on the case is believed to be a decisive factor which has contributed to the creation of the federal government in the U.S (Simon 121).

The necessary and proper clause have today been used extensively by the congress. Example is the Gonzales v. Raich (2005). A woman who grew marijuana in California was charged under the federal law for possession of drugs even though medicinal marijuana is legal. The Supreme Court stated that the congress may use the clause on commerce to ban the use of homegrown marijuana. If the homegrown marijuana is traded, it will interfere with the attempt to ban interstate trading of marijuana. This is an exercise of the necessary and proper clause where congress makes laws protect the interstate commerce.


John Marshall works re-shaped the American government and impact are felt even today. His opinion has become the legal basis of successive expansions of federal power. The necessary and proper clause is used by congress to make laws that are not in the constitution, yet necessary in the execution of the stated powers.

Works Cited

Gresham, Gary P. The Legislative Branch of Federal Government: People, Process, and Politics. Santa Barbara, Calif: ABC-CLIO, 2008. Print.

Simon, James F. What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States. New York: Simon & Schuster, 2003. Print

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