Mikhail on the Necessary and Proper Clauses

My Georgetown University Law Center colleague John Mikhail, has posted The Necessary and Proper Clauses, which appears in the Georgetown Law Journal 102 (2014).  Here is the abstract:  

The Article's main purpose is to provide a new and more accurate account of the origins of the Necessary and Proper Clauses. I refer to the Necessary and Proper “Clauses” rather than to the Necessary and Proper “Clause” to emphasize that the relevant constitutional text is comprised of three distinct provisions, only the first of which concerns the enumerated powers in Article I, Section 8:

1. “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”
2. “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States”
3. “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in . . . any Department or Officer [of the United States]”

James Wilson was probably the most skilled and accomplished lawyer at the constitutional convention, and he appears to have devoted great care and attention to drafting these clauses for the Committee of Detail. Just why he drafted these clauses in this manner and how they influenced the subsequent development of American constitutional law are the primary subjects of this Article and of the broader research project of which it forms a part.

Among other things, the Article contends that the second Necessary and Proper Clause is particularly important for understanding the basic design of the Constitution. Unless it is treated as surplusage, this second clause indicates that the Constitution vests powers in the Government of the United States that are not merely identical or coextensive with the powers vested in Congress or other Departments or Officers of the United States. Because these additional powers are not specified or enumerated in the Constitution, they must be understood to be implied or unenumerated powers. The existence of implied or unenumerated powers is thus explicitly recognized by the precise text of the Constitution, much like the existence of unenumerated rights. Moreover, these “other powers” are distinct from the powers encompassed by the first Necessary and Proper Clause, which by its terms are limited to whatever instrumental powers are necessary and proper to carry into effect the “foregoing powers” vested in Congress by Article I, Section 8.
The second Necessary and Proper Clause was intended to achieve precisely this objective: to declare and to incorporate into the Constitution the doctrines of implied and inherent powers that Wilson, Robert Morris, Gouverneur Morris, Alexander Hamilton, and other prominent nationalists at the convention had advocated throughout the previous decade, and that Wilson, in particular, had defended on behalf of the Bank of North America in 1785. Recent scholarship on the Necessary and Proper Clause has tended to skip over this preconvention history, but it is essential for understanding why the nationalists were so committed to implied powers, and how they managed to ensure that the Constitution delegated both express and implied powers to the United States.

Part I introduces the central theme of the Article by distinguishing the main components of the Necessary and Proper Clause and by recalling some of the distinct roles these provisions played during the formative era of American constitutional law. Part II explores the intellectual origins of these provisions by examining the genesis of Resolution VI of the Virginia Plan and by tracing some of the important links between its key legislative proposal and the political philosophy of the nationalists. Part III takes a close look at the drafting history of the Necessary and Proper Clause in the Committee of Detail, focusing on the contributions of Wilson, which previous scholarship has frequently ignored. Drawing on extensive historical research, Part IV examines the eighteenth-century origins of the phrases “necessary and proper” and “all other powers,” demonstrating inter alia that these were familiar features of the sweeping clauses in corporate charters and other legal instruments with which Wilson and other framers were intimately acquainted.

In sum, the Article contends that the basic design of the Constitution and the influential debates over the scope of federal power that occurred during the founding era cannot be understood properly unless one recognizes that there are three Necessary and Proper Clauses, not merely one or two. The framers could easily have drafted a Necessary and Proper Clause that gave Congress the authority “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 any Department or Officer of the United States.” The fact that they did not do so requires us to come to grips with the exact language they did adopt, and to ask a simple but penetrating question that goes to the heart of the framers’ constitutional design: What powers are vested by the Constitution in the Government of the United States? Whatever answer is given to this question, it cannot be adequate or sufficient merely to point to the enumerated powers of Congress in Article I, Section 8; the other powers vested by the Constitution in the Departments or Officers of the United States; and the instrumental powers to carry all of these powers into execution, which are given to Congress by the Necessary and Proper Clause. To remain faithful to the text, structure, and history of the Constitution, one must also provide a convincing account of the “other powers” vested by that Constitution in the Government of the United States, to which the second Necessary and Proper Clause refers.