The Elastic Clause of the Constitution

American-ConstitutionReprinted from PJ Media.

If college students listened to Mark Levin or Rush Limbaugh, they would receive a better American history education than they are getting from their professors. I recently spoke at Emory University, where one student defended all of President Obama’s unconstitutional actions by invoking the Elastic Clause of the Constitution.

Citing the Elastic Clause could indeed justify a wide range of administration actions, except for one problem – it doesn’t exist.

But you couldn’t tell that to the student at Emory University who came to my speech last week on Obama’s abuses of power. He persisted in defending the actions through the Elastic Clause, as if the be-all, end-all provision was common knowledge.

From the sound of it, the Elastic Clause must be common knowledge in faculty lounges.

The Elastic Clause, he persisted, gives the president the power to address a wide range of issues through executive prerogative. It allowed the government, he said, to adapt to new circumstances unlike the age when the Founders wrote the Constitution.

Of course the Founders did include an “elastic clause” of sorts, namely Article V, which gives the people and the states the power to amend the Constitution.

But he wasn’t speaking of something quite so stiff and formal. He wasn’t referring to something that required broad assent. He was referring the Elastic Clause that allows the president to swiftly respond to needs as they arise – sort of like Mussolini and Mugabe did.

He was serious. He really believed the Elastic Clause was real. But the constitutional literacy of a different student was even worse. With a straight face, she defended the exercise of executive power and the issuance of executive orders as constitutional because of the inaction of Congress.

“It’s part of the Constitution that if the Congress doesn’t act, then the president can issue executive orders to fix something,” was her argument.

Even more frightening, the person saying this is an officer of the campus Democrats. A little totalitarian in training.

Naturally, this was all quite an eye opener. I’m no fool when it comes to the institutional left and their corrosion of the system. But to have a student debate me over a verifiably fictional constitutional provision, to have a student presume I was the one making things up when I said the Elastic Clause didn’t exist – that blazed new territory.

All of this illustrates the dangerous rot occurring on campus, facilitated in large part by the faculty. All signs point to their success. Students are learning the lexicon of the institutional left and producing tragic-comedy like complaining about equality at UCLA, and worse. My appearance at Emory was sponsored by the David Horowitz Freedom Center and the College Republicans. Recognize that groups like these are fighting an uphill battle on campus. But without them, college campuses would be intellectually monolithic.

The talk at Emory wandered into the small discrete psychological components of tyranny as described brilliantly in Aleksandr Solzhenitsyn’s Gulag Archipelago. No doubt Mr. Elastic Clause and College Democrat Vice President Edict had never heard of the Nobel Prize winning description of where elastic ideas can lead.

Solzhenitsyn’s great book of the 20th century describes the small ideas of totalitarianism, and the camouflaged embryonic consent that individuals give to tyranny over time. Tyranny isn’t just about gruel with potato peelings day after day and bullets to the back of the head.

I presume Mr. Elastic Clause and Ms. College Democrat Officer will never read Gulag, but if they did, they would learn the story of Georgi Osorgin. Osorgin was imprisoned in the Solovetsky Islands in the early 1920s. The date was important because American leftists (such as some Democrats of the 1960s) like to pin the mass murder system only on Stalin. But Solzhenitsyn documents that the gulags were a necessary part of Lenin’s vision of the International Brotherhood. Without terror, his system would not work.

Osorgin was to be shot, but he begged his jailers for a few more days because his wife was coming to visit him at the gulag. Osorgin’s wife visited him, then as her boat pulled away from Solovetsky Island, keeping his part of the bargain, he undressed to be shot. Niceties were part of the gulag in the early days because nobody really knew where the fledgling system was headed.

Solzhenitsyn:

But still, someone did give them those three days. The three Osorgin days, like other cases, show how far the Solovetsky regime was from having donned the armor of asystem. The impression is left that the air of Solovki strangely mingled extreme cruelty with an almost benign incomprehension of where all this was leading, which Solovetsky characteristics were becoming the embryo of the great Archipelago and which were destined to dry up and wither on the bud. After all, the Solovetsky Islands people did not yet, generally speaking, firmly believe that the ovens of the Arctic Auschwitz had been lit right there and that its crematory furnaces had been thrown open to all who were ever brought there. (But, after all, that is exactly how it was!)

People there were also misled by the fact that all their prison terms were exceedingly short: it was rare that anyone had a ten-year term, and even five was not found very often, and most of them were three, just three. And this whole cat-and-mouse trick of the law was still not understood: to pin down and let go, and pin down again and let go again. . . .

Here too, on the first islands of the Archipelago, was felt the instability of those checkered years of the middle twenties, when things were but poorly understood in the country as a whole. Was everything already prohibited? Or, on the contrary, were things only now beginning to be allowed? Age-old Russia still believed so strongly in rapturous phrases! And there were only a few prophets of gloom who had already figured things out and who knew when and how all this would be smashed into smithereens.

I explained to the students that a written Constitution, free from the phony Elastic Clause and power for a president to issue edicts, is what keeps them free. It is what lets them have fun and have a good life. Structural constraints on the power of government allow people to experience joy, worship God, build dreams and fulfill potential. Our Constitution does not have an Elastic Clause for a very good reason. It was established to be inelastic absent the consent of three quarters of states. It was established to lay down fundamental ironclad restraints on the power of government, especially the executive branch.

Some are trying to redefine freedom away from this ideal and toward freedom from want.

That it is becoming fashionable to reject our particularly American version of freedom deserves an overpowering response.

Freedom Center pamphlets now available on Kindle: Click here.

  • oxpoqxo

    The elastic clause does in fact exist (Article I Section 8) and it would have been nice if you had included it verbatim so your readers could judge. The founders never intended POTUS to legislate. Even elastic will snap if it is stretched too far.

    • TheOrdinaryMan

      Article I Section 8 provides for “the power to lay and collect taxes, imposts, and excises, to regulate commerce with foreign nations, among the states and with Indian tribes, to establish uniform bankruptcy laws, to establish post offices and post roads…to establish a Navy….” Perhaps you could tell us how anyone could get an “elastic clause” out of this. An elastic clause? Why bother to have a Constitution at all, if any rascal could get around it by saying that the POTUS can interpret the Constitution any way he sees fit?
      Sounds like the Liberum Veto of 18th Century Poland–where anyone could derail legislation in the Duma. All they had to do was raise their hand, and shout “I disagree!”

      • oxpoqxo

        Article I Section 8: “To make all Laws which shall be necessary and proper (In defining “necessary and proper” much can be implicated- it’s very “elastic”) for carrying into
        Execution (Implicating a Presidential Role in his capacity as executor of American law) 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.” I get what your saying and believe it should be strictly a function of Congress but lawyer politicians can be slippery. [One could argue there was nothing in the Constitution permitting Jefferson to make the Louisiana Purchase unilaterally. Issues like this are supposedly covered legally by this clause. But Obama has relied on fabricating more elastic than someone bungee jumping the Grand Canyon. You can’t legislate (especially as POTUS) via one clause of the Constitution- especially this one. It is as slippery as saying the Constitution never mentioned women and therefore only applies to men.

        • TheOrdinaryMan

          A politician with a shady past(the mayor of New Orleans, maybe?) could determine that its “necessary and proper” to reward ACORN members who helped get him elected, by giving them free apartments to live in, and thus evicting current residents. He/She could justify the evictions by finding a law that has the phrase “necessary and proper” in it, in the city charter. But we both know that the evictions would be illegal. In the case of the US Constitution, what was the intent of the Founders? Was it to give the President unlimited power? We both know the answer to that. And in the case of the Louisiana Purchase, Jefferson would have been a fool not to take the deal offered by the French; and the purchase was of great benefit to America. No chance that Obama will do ANYTHING that benefits the United States.

        • Wolfthatknowsall

          “It is as slippery as saying the Constitution never mentioned women and therefore only applies to men.”

          That is because the term “man”, or “men”, as used in the 18th Century, was understood to include women. “All men are created equal”, includes women.

          “Bungee jumping the Grand Canyon”. Great line …

        • 11bravo

          Did Jefferson do the LP unilaterally?
          Many things have been done by ignoring the constitution, that does not make them constitutional.

    • CowboyUp

      That’s only elastic in the minds of leftists. The generalization is limited to the 17 particulars that follow, as explained in The Federalist #41. About 70% of federal spending falls outside those particulars and is unconstitutional. Not coincidentally, that 70% is also what is bankrupting the country.

  • cxt

    Excellent if tragic article.
    Simple answer–we don’t teach the civics or its importance anymore. So the student/s POV, while kinda off putting, is at least understandable.
    The implications however are honestly frightening. It is sort of like living in a pre-Gutenberg (sp?) world where most people can’t read and books of any sort were rare.
    Now books are everywhere and the vast majority are literate but few take the time to read.
    The end result is the same. Ignorance in action.
    I would also speculate that both students would, quite suddenly, come to the conclusion/realization that the President DID NOT have such powers and the “elastic clause” was VERY limited……….if POTUS happened to be a Republican.
    As evidence, Barack Obama himself was VERY vocal about presidential overreach and made it campaign talking point during his first run for the White House. Now of course things are “different.” ;)

    • CaoMoo

      To them I say beware the powers you usurp today for tomorrow they may be used against you.

  • Berceuse

    The problem isn’t limited to Democrats. Some on the right, including contributors to this site, use the same faulty logic and Constitutional misinterpretations to rationalize Obama’s assassinations of American citizens.

    • CowboyUp

      No, when American citizens join a foreign power waging war on America, they fall under military law, not civil law.

      • Berceuse

        Case in point. Thanks for proving my point. What you are saying, then, is that the elastic clause doesn’t exist…except when you want it to. Doesn’t work that way.

        • CowboyUp

          Attacking and killing members of military or paramilitary organization waging war against the USA is clearly covered under items 9 and 10 in the list of particulars of Article 1 Section 8. They fall under the laws of war and the UCMJ. They can be attacked and killed where found like any other al qaeda member. If captured, they aren’t entitled to a civil criminal trial either. By law, they, and all al qaeda members are supposed to get a military tribunal. The same held for US citizens fighting for Germany in WW2.
          I’ve no doubt your point can be easily proven, just not with that ‘example’.

          • Berceuse

            Ironic that you are arguing a liberal interpretation of the Constitution….on a thread criticizing the invocation by some of the so-called the elastic clause. We all know the Constitution grants the president certain powers, including war making, and the Bill of Rights constrains and circumscribes those powers as they relate to U.S citizens. There is no asterisk at the end of the 5th Amendment, no “except when” clause. Simply put, I can show you specific language in the Constitution prohibiting the government from usurping a citizen’s right to life without due process — period — not to mention the numerous SCOTUS decisions over the centuries reaffirming those rights and in fact extending them to citizens overseas. I have yet to see a single military regulation, code, law, or case law — ever — authorizing assassination of U.S. citizens. To intuit such an authority based on the powers delineated in Article 1 relating to foreigners is taking an elastic, “living Constitution” interpretation — the very type of interpretation criticized in the above essay and by most posters — including, ironically, you.

          • CowboyUp

            Actually, there is an “except when” in the 5th, for military law, and it also mentions “due process.” For members of a military organization waging war against us, due process a military tribunal.

            It’s the ‘liberals’ (not a word that accurately describes leftists so I don’t use it to describe them) that have been making your argument and trying to blur the definition of lawful combatant to cover terrorists. They’ve been doing that since the 50s, at least.

            That’s because SOP for Marxist revolutionaries is to use illegal combatants and deliberately target civilians. Since, along with the Western terrorist groups like the IRA and Red Brigades, most of the original Islamic terrorist cadre were trained by the Warsaw Pact, they have the same basic organization and SOP. Thus ‘liberals’ extend privilege to even the poster children of all they claim to abhor, rather than limit them to their rights.

            The Irony is that you claim to care so much about something that apparently, you haven’t looked into at all. Don’t feel like the lone ranger though, there are plenty of conservatives that haven’t either.

          • Berceuse

            Military law does not supersede the Constitution. A military tribunal, of course, would satisfy the Constitutional right to due process. In the case of Anwar al-Awlaki, no such tribunal took place.

            You have not provided a single instance of case law establishing the government’s authority to assassinate a U.S. citizen without due process. You can’t, of course. It doesn’t exist. Except in misinformed “elastic” interpretations of presidential war powers.

          • CowboyUp

            Military law is part of the Constitution, and so are treaties. Anwar al-Awlaki was a member of a military organization waging war on the USA, which is enough in itself, but they even declared war against us. He is hors de combat for the first human being that can kill him, as far as US and international law is concerned. Nobody’s under any obligation to capture him. That’s not even a ‘maybe’ case, he declared his allegiance to them. He had his due process.

          • Berceuse

            Once again I ask: Please cite the “law” you are referencing. Of course, you can’t. It doesn’t exist. And now we’ve come full circle. The only place such presidential authority exists is in the elastic interpretation in your own head. Once again, thank you for making my original point.

          • CowboyUp

            Ex parte Quirin, 317 U.S., established that any unlawful combatant against the US, including US citizens, falls under military law. Terrorists are unlawful combatants according to the Laws Of Armed Conflict. According to the LOAC, they are lawful targets and can be attacked without warning.

          • Berceuse

            Quirin doesn’t apply. The court merely established that illegal enemy combatants are subject to military tribunals. That’s it. There is nothing in the Quirin decision referencing attacks in any context, much less assassinations of U.S. citizens. The decision exclusively deals with military tribunals — which satisfy the due process requirement. Anwar al-Awlaki was afforded no such tribunal.

          • CowboyUp

            Quirin does apply, because it establishes enemy unlawful combatants – who are US citizens (the part you conveniently left out) – fall under military law. Like I said, under the LOAC, the US is under no obligation to capture enemy combatants alive or warn them before attacking and killing them. If you can find an LOAC provision that says they do, I’d love to see it. Otherwise, unless they surrender or are captured, their due process is US ordnance.

          • Berceuse

            No, I wasn’t ignoring anything. I’d assumed the citizenship of the Quirin defendants was established and didn’t need to be reiterated.

            In any event, this speaks to my original point. To use the Quirin decision authorizing the president to convene a military tribunal to try citizens in court as justification for some broader assassination authority is textbook elastic interpretation.

            The UCMJ, LOAC and Hague and Geneva specifically prohibit assassination of anyone not engaged in hostilities. There is even a clause specifically prohibiting aerial attacks of any kind against illegal combatants. Recall that Awlaki was never shown to have participated in attack and was sitting in a private home eating breakfast when killed by an aerial drone.

            Last point: SCOTUS has repeatedly rejected the Quirin argument, in Padilla, Hamdan and Lindh.

          • A Z

            If one is prohibited from assassinating Awlaki, you are also prohibited from assassinating Goebbels.

            “He used modern propaganda techniques to prepare the German people ideologically for aggressive warfare.”

            - https://en.wikipedia.org/wiki/Joseph_Goebbels

            Goebbels was not engaged in hostilities. He never so much as picked up a rock.

            “He repeatedly called for jihad against the United States”
            - https://en.wikipedia.org/wiki/Anwar_al-Awlaki

            This is for you. You feature prominently in the essay.
            http://pjmedia.com/blog/why-i-write/

            Two points:
            If he was a propagandist and nothing more, he is a legitimate target.

            If he is a regional commander, he was a legitimate target. But you would be more than happy it seems to totally let this guy go free unless we gave up our sources and methods and made the CIA moribund.

            “U.S. officials said that in 2009, al-Awlaki was promoted to the rank of “regional commander” within al-Qaeda” – wiki

        • 11bravo

          By definition you are a traitor. The tribunal and summary executions of this offense have been carried out by military officers on the field of battle for ever. In this case the tribunal was showing the evidence to the president, or one of his proxies.
          Some, never went past the Brigade level except to notify higher ups of the execution.

          • Berceuse

            Please cite for me a previous instance in our nation’s history — just one — in which a sitting president ordered and carried out the assassination of a U.S. citizen. Look it up and get back to me. I’ll wait.

          • 11bravo

            Nice try. You are splitting hairs. Commanders in the field (his proxies) are representing the commander in Chief – same thing legally.
            Would it really have mattered if old Abe had to give the order himself? I’ll wait.

          • Berceuse

            You’re completely missing the point…and completely off point. Military tribunals satisfy Constitutional due process protections. It’s irrelevant anyway, because in the case of Anwar al-Awlaki there was no such tribunal. In fact — to answer the question that you dodged– there has never been an assassination of a U.S. citizen in our nation’s history. Until now.

          • 11bravo

            Your splitting hairs Mr. Ron Paul absolutist libertarian. The constitution means what I say it means, and there is NO OTHER interpretation allowed.
            What about the US sniper in WWII who shoots a German American in Berlin who went back to fight with Hitler?
            I am reaching – but so are YOU!

          • Berceuse

            You raise an interesting point. There were hundreds, maybe thousands, of Amercans who went to fight for the German Wehrmacht. The government never tried to assassinate a single one — ever. In fact, after the war most of these traitors returned to the United States.

            The Constitutionally protected presumption of innocence until proven guilty in court does not prevent a cop or a soldier from killing a citizen in an immediate life or death situation, such as a firefight or battle. But neither a cop nor a soldier may assassinate a suspected enemy, even if the suspected crime is something a heinous as treason. It’s why, for instance, our troops brought John Walker Lindh home to stand trial, rather than just put a bullet in his head. Anyone who would have done so would have spent the remainder of his life in prison.

            I’m not a Ron Paul supporter, but I uphold the rule of law. Obama does not, and he should be impeached for it.

          • A Z

            Many Germans were put in internment camps. They were from all over the Americas. No proof was given. Germans who had citizenship of Latin American countries were so interred.

            WW2 was not so white gloved as you say.

            There were some Italians treated the same way.

          • tagalog

            When you make war on the United States and you’re a United States citizen, it is well within established law, not only the law of war but civil law as well, to deem you to have repudiated your citizenship and become a traitor.

            It is the law in the United States that if you join a foreign army, even one that is an ally of the United States in war, you lose your U.S. citizenship. Ask all the U.S. citizens who got tired of waiting for the U.S. to enter World War II and who joined the RAF or the Canadian Army. They all lost their U.S.citizenship. They later got it back, but they lost it first.

          • Berceuse

            Your post is incorrect. The Supreme Court ruled in 1896 (Wiborg v. U.S.) that it is NOT a crime to enlist in a foreign army, nor does one lose citizenship for it. In fact two subsequent court rulings confirmed that the government may not retract one’s citizenship for any reason. A citizen may renounce his citizenship, but can reclaim it any time. IF a citizen formally renounces his citizenship at the same time he gains foreign citizenship AND joins a hostile army, THEN the U.S. government can nullify his citizenship and he would be fair game for assassination.

            None of those circumstances applied to the Awlaki situation. He never renounced his citizenship, never became a citizen of any other nation state, never joined a foreign army, and the U.S. government never revoked his citizen status before hunting him down and assassinating him while he sat in a private house eating breakfast.

            In fact his assassination was an impeachable offense. It’s disappointing that so many conservatives have joined forces with Obama’s mindless sycophants in defending this crime.

          • A Z

            Citizenship is a choice. It is a state of mind. People vote with their feet, when they can. Awlaki certainly did.

            Awlaki’s citizenship is as valid as that of a Soviet sleeper agent.

            Your problem is that you are so legalistic and pedantic that you are a danger to everyone including yourself and you are unaware of it.

            You are such a danger that I do not feel like yelling “Fore” or “incoming”. I’ll just keep my mouth shut.

  • The Facts

    So, David Horowitz pays a guy to go talk at a college. At the college, he meets a dumb student. Then he writes about the dumb student on Mr. Horowitz’s website, exaggerating the significance of the student and also of Mark Levin and Rush Limbaugh. A sensible person would say Mr. Adams is fortunate that the economy can still support fake jobs such as his. It’s a testament to the bounty of America.

    • bigjulie

      And your point is?? The country is loaded with “dumb students” who really consider themselves to be paragons of intellect. My impression is that is exactly what Mr. Adams was attempting to point out. Messrs. Limbaugh and Levin do a great job of trying to keep us on track with what the Founders intended and both have written really good books, especially Mark Levin, on the basics of the philosophies behind the founding of America.
      A “sensible person” would recognize that you do not know what you are talking about, except possibly to show off a supposed talent for pointless bombast.

    • 11bravo

      Not a dumb student, an “educated” student!
      There is a world of difference. A little totalitarian in the making I believe he said.

    • cxt

      The Facts
      Perhaps–except that such an experience seems to be becoming the new normal.
      Besides a “sensible” person might realize that sans website and sans people whom post articles then they would have no place to post their own comments—for free.
      A “sensible” person might well conclude that the only reason they get to post at all is the very website and articles they decry.
      Ironic isn’t it.
      Also troubled by people that pick internet handles like “The Facts”–a choice like that seems to suggest they already have “the facts” and thus they have no need to discuss—after all why bother?
      Naturally THEY are the ones with the “facts” or “the truth” etc. and by implication EVERYONE else–300 million or so people in the US alone, must be wrong.
      Just kinda strange.

      • CowboyUp

        His hilariously inaccurate citation of the 5th in his ‘conversation’ with me below, was especially poetic. Apparently, he doesn’t want to be bothered with the facts.

    • tagalog

      How fitting that that dumb student would be an officer of the campus branch of some Democrat group.

      And they call US “the stupid party.”

  • kilfincelt

    When I was in school, you couldn’t graduate from high school or community college unless you passed a test on the federal constitution and the state constitution. If this requirement has been removed from our educational system then it needs to be reinstituted immediately. Of course, the next problem will be making sure that those who teach the subject actually understand what they are teaching.

  • GoodBusiness

    Let me ask you – what Constitution are you speaking towards – clearly not be followed by the monied interest in the Federal government. Congress and the Courts have rewritten the Constitution to meet their needs for power without a single amendment. So, what you are saying is that you trust the Congress and the Courts to continue to amend as desired without LIMITS because they have a majority of the votes.

    Yes, what we have is a PURE DEMOCRACY without most of the limits of the original Constitution. Now to use your analogy about the gun to the head – you are worrying about a pistol and the government is shooting us with machine guns and TAX BOMBS.

    They have killed our freedoms to open a business or practice our skills without getting a very expensive series of permits, approvals and licenses. They have taken our liberties and freedom of property and choice as the people stood by saying we just need to elect others to make changes and set us free – can anyone present a single nation that has gone this far down the road to a PURE DEMOCRAT SOCIALIST/FASCIST government and restored the freedom and liberties? I know of none and I have read the classics and history from the Greeks forward.

    The bullets are being fired and they are only killing our economy and our rights to earn a living keeping our money.

    If we can but prevent the government from wasting the labours of the people, under the pretence of taking care of them, they must become happy.

    Thomas Jefferson

    A wise and frugal Government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circlue of our felicities.

    Thomas Jefferson

    http://articlevprojecttorestoreliberty.com/the-basic-library.html

  • 11bravo

    I would love to hear the audio on that student.

  • kasandra

    Next time, maybe you could bring a copy of the Constitution and ask them to show you the clauses to which they’re referring. That’ll bring them up short.

  • Daniel

    You would come across better if you weren’t so dishonest about your representation of what other people are saying. The “elastic clause” is one of many nicknames for what is also commonly called the “necessary and proper clause” of the Constitution. Specifically, Article I, Section 8, Clause 18, which states:

    “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.”

    When people call it the “elastic clause”, they are referring to the *concept* of elasticity that is provided by this language. The idea is that by granting an additional power to make laws “necessary and proper” to carrying out the other enumerated powers, the founding fathers made *those other enumerated powers* more elastic, permitting the laws to stretch a little beyond what is specifically enumerated in order to allow for Congress to enact laws in order to enable it to exercise each of its enumerated powers. This makes some logical sense, too, because the founding fathers couldn’t have possibly forseen every possible situation that could arise, and because the process of amending the Constitution is so burdensome, they wanted to leave enough room so that Congress and the President could act without having to amend the Constitution every time something even slightly outside the powers enumerated in Article I, Section 8 came up.

    This elasticity was intentional on their part, and it’s not at all boundless. It specifically only provides for flexibility to the federal government’s actions *around one of those enumerated powers*. It allows for laws that stretch out a little beyond what each of those enumerated powers are, but not otherwise. Hence, “elastic”.

    You’re free to argue that this elasticity has been abused. You’re free to argue that what Congress and the President have ultimately done in its name is well beyond what the founding fathers intended. You’re even free to argue that the Supreme Court was wrong each and every time it wrote that a law was not expressly within the bounds of an enumerated Article I, Section 8 power, but was still constitutional because the law was “necessary and proper” for the government to exercise an enumerated power. You’d even have support for arguing that from what some of the founding fathers wrote about it. Patrick Henry argued that it was a license for federal power to eventually become limitless and to threaten individual liberty. Agree with him if you want, I’m not one of those people who pretends the founding fathers were all unified in solidarity around everything the constitution says.

    But what you *shouldn’t* do is play dumb and act like these people aren’t referring to anything in the Constitution at all, when they clearly are and you probably know it. Even if you didn’t know it, you failed to look it up, and it wouldn’t have been that difficult. If you search for “elastic clause” on Google, literally the first response is the Wikipedia page on “Necessary and Proper Clause”, and Google even shows you the first sentence which begins: “The Necessary and Proper Clause, also known as the Elastic Clause…” Instead, you made some vague reference to Article V and otherwise insisted that what people are talking about isn’t in the Constitution, when it in fact is.

    If you want to persuade people, have an intelligent, respectful discussion. Being intellectually dishonest like this will only cause people to not respect you enough to even consider what you’re saying. It’s kind of appalling to think that someone who would play such dirty word games to try to make a persuasive argument actually worked at the Justice Department.

    • Randy Townsend

      Neither Wikipedia, nor Google, is an authority on anything. There is no “Elastic Clause” – new verbiage (never heard it in law school many years ago). The N&P clause refers to Congress alone, not the Executive, and it has definite limits (i.e. relating to the law making process engaged in by Congress).

    • cxt

      Daniel
      So, even in your own posting, you show good and proper reasons why the subject is complex and with multiple interpretations.
      So why use the term “dishonest” as even in what you posted there is clear difference of opinion and interpretation????
      Didn’t you say “CONGRESS and the President could act” So if you and your POV is to be believed the Congress could reach beyond its enumerated powers as well and take unilateral action beyond the scope of its authority.
      I wonder how you and other Leftists would view that???
      Also please recall that despite your protestations President Obama himself—invoking his training as a Constitutional professional—decried the actions of Bush in his application of the concept……….until of course he had the job. ;)
      So if you really want to argue about it—why not take it up with the President as he clearly USED to take serious issue with YOUR POV. ;)

    • tagalog

      You’d be pretty much right if it weren’t for that pesky detail that the “necessary and proper” clause you cite is in Article I, relating exclusively to CONGRESS, not the executive branch. So it’s CONGRESS, not the President, that has the powers necessary (and proper) to carry out its delegated powers.

      The powers of the executive branch are expressed in Article II.

      Please try to be intellectually honest in the future and avoid that sneaky language about “Congress and the President.”

    • Christian Adams

      A real Article I power does not a phony Article II power make. The Executive enjoys no “Elastic Clause.” It does not exist any more than the “Edict Clause or the Unicorn Clause.” It is a fairy tale.

  • tagalog

    There’s a “necessary and proper” clause in Article I, I believe, that gives Congress the power necessary (and proper) to carry out its delegated express powers. I didn’t know there was anything similar, whether “elastic” clause or “necessary and proper” clause in Article II or anywhere else in the Constitution, relating to the powers of the President or the rest of the executive branch.

    It strikes me that such a clause even for Congress may be problematic now that we have a government so dependent on the unelected bureaucracy. Maybe it IS time to do some amending of the Constitution.

    Why am I not surprised to learn that the Democrats are evidently not reading the Constitution? Although as I consider it, why should they? The Constitution to them is organic, a living document that can mean whatever they want it to mean. It’s only when the conservatives or Republicans are in power that the Constitution reverts to simply being the supreme law of the land.

  • Trichiurus

    It is an adjunct to their elastic values.

  • keithj

    The Gulag Archipelago—-a must read—-again for me.

  • G. Tod Slone

    Yes, interesting article. Too bad you did not obtain the student ADULT’s name and a direct quote. I would have loved to cartoon her. Just the other day (I’m now reading the Gulag a second time, though this time auf Deutsch), I thought how little Solzhenitsyn is now mentioned in the literati circles. So, I’m glad you evoked him. For me, he is one of the very best (with Orwell) of the last century). Read The Oak and the Calf for a great take on the literary scene under USSR socialism and how much it resembles the scene in America today! One thing I do not like about conservatives is their constant pounding of the religion drum! I am for small government and the First Amendment, but am an atheist. Can an atheist not be conservative? Frontpage ought to have a little section, where conservativism and capitalism are criticized by conservatives. Otherwise, it remains blind to the faults of conservatism and less convincing. Blindness is never a good thing. BTW, check out my blog for the cartoon I did on that Wellesley College sleepwalker statue… featuring Hillary as the statue.

    G. Tod Slone, PhD (universite de Nantes, FR),

    Founding Editor (1998)

    The American Dissident, a 501c3 Nonprofit Journal of
    Literature, Democracy, and Dissidence

    http://www.theamericandissident.org

    wwwtheamericandissidentorg.blogspot.com

    todslone@hotmail.com

    217 Commerce
    Rd.

    Barnstable, MA 02630

  • Lanna

    Obama makes himself the law and disregards the law and the Constitution. He isn’t fooling anyone about his insane Power Grab.

  • bittman

    The Progressives Professors must be teaching their students about the “elastic clause” because I’ve encountered several young people who have sworn the President had the executive privilege of changing laws as needed. I’ve found the best thing to do is to ask them to get out a copy of the Constitution and tell me where to find this clause.

  • Beth Aaron

    Yes, Bush used it to launch a diabolic war crime upon the people, young, old, women, children, the environment, of Iraq for a lie the media perpetuated. Coffins abounded, children were maimed, families torn apart, the landscape obliterated, for a lie, as all wars seem to be.
    When a nation sleeps with its so called enemy for the so called “resources” it needs be they energy, mined materials, to fuel the ideology of economic growth, the golden calf replacing the one true Gd, it is expected that resistance will ensue.

    Who can even tell, with an unbiased eye, who the bad or good guys are. With words tossed about like anti-government forces, rebels, gorilla’s, insurgents, anti-insurgents, terrorists, all for the purpose of propping up whatever regime is kindly to the “interests,” of foreign nations , and common divisions in the US that serve no common good, left wing, right wing, liberal, conservative, everything based on dividing, who knows anymore what is best for the common good of ALL that live and breath on this troubled earth due to what the human species is doing to every life support system on which it all depends.

    Clinging to the use of military force as the only way to solve man-made problems, is so shallow and fear based. We teach children ( perhaps not anymore )not to hit or fight to solve problems yet, as adults, we so easily resort to mass destruction against our own species, something animals who we see as lower, never do.

    My view of humanity and our unnatural behaviors, our wars, genocides, mental and physical diseases , clinging to the prowess of military power as somehow being the measure of greatness, makes me wonder just how we define religion today. The message of Christ was NOT, go forth, ravage the earth, wage war on whatever nations resist westernizing, McDonaldizing, Dunkin Donutizing, KCFizing, and extract all the layers of Creation for your economic interests, to the point your planet’s infrastructure collapses from pollution, over use, and the inability to rebound from human exploitation. The mission of humanity is what? Dominate, use up for self-serving purposes, poison the planet and spend billions searching for resources on others once you’ve soiled your own nest here?
    ALL Presidents take the law into their own hands. STOP blaming this one and blame yourselves for aspiring to a “dream” that has always been an illusion, a lie. In truth, we are guests here and so far, we are leaving our home a trash heap, a slaughterhouse, a once pristine place where all life thrives, was pure, a gift turned into a cess pool. ALL of us are guilty of selfish want and making choices that cause harm. We are all guilty of turning a pristine planet where nature and life support systems were functioning, clean, able to support life, into a choked, clogged, toxic stew, saturated with the creations of modernity that have put fetal development in harms way, and given rise to environmental disaster. As a nation touting to be, “Under Gd,” our behaviors do not make Creation, a word synonymous with environment, healthy and thriving.
    STOP blaming others and LOOK in the mirror. We are all to blame for aspiring to a fake , manipulated system that causes harm not peace, disease, not health, suffering, not empathy, violence, not safety. When our water is undrinkable, our air, unbreathable, and food systems put people in hospitals, there is much to transform from inside, out. We need look at no one but ourselves. Easy to turn blame on others but solutions are inside.