Reinstein on the Necessary and Proper Clause

Robert Reinstein, Temple University James E. Beasley School of Law, has posted The Great Power of the Necessary and Proper Clause:

The scope of Congress’s authority under the Necessary and Proper Clause is being challenged by a theory that is gaining acceptance in the courts and in legal scholarship. The “great powers” theory posits that some implied powers, even if necessary to effectuate an enumerated power, are not “proper” because of the degree of their importance. According to its advocates, powers that are great, important and substantive cannot derived from implication. This theory is said to enforce the principle that implied powers are necessarily inferior to express powers and to explain why some seemingly incidental powers, but not others, are listed as enumerated powers in Article I, Section 8.

This theory is gaining traction. It has recently been adopted by three Supreme Court Justices (including by the Chief Justice in the first Health Care Case) and defended in important scholarly works. Critics have challenged this theory as being too indeterminate to apply and contradicted by the conventional reading of McCulloch. The criticisms in this article are more fundamental -- the great powers theory is unsound historically, doctrinally and as a matter of constitutional construction.

The great powers theory originated in James Madison’s speech in the First Congress opposing the creation of the Bank of the United States. Although advocates of this theory rely on Madison’s speech, they overlook the Federalist rebuttal and the House of Representatives rejection of Madison’s views by a decisive majority. And Edmund Randolph and Alexander Hamilton each rejected Madison’s theory in their opinions on the Bank’s constitutionality. The prevailing Federalist rebuttal in the First Congress is an important precedent concerning the mainstream understanding of congressional power. That rebuttal and Hamilton’s opinion are also important for an understanding of McCulloch because Marshall’s opinion drew extensively from them.

Madison and the theory’s present advocates rely on a method of constitutional construction that is based on a negative inference: because some seemingly incidental powers were important enough to be listed as express powers, other important but unlisted powers cannot be derived by implication. Instead of being incidental, these unlisted powers are “great substantive and independent.” But the debates over the Bank refute this method of construing the scope of congressional powers. As Randolph and others observed, listed powers that are seemingly incidental of principal powers often are independent of, and cannot be derived from, the principal powers. Moreover, many of these powers were vested in the United States under the Articles of Confederation. Considerations of the separation of powers and prudence suggest why the Framers included them as powers of Congress under the Constitution.

Finally, this article examines three important powers – the use of legal tender as the nation’s currency, military conscription and the individual mandate in the Affordable Care Act – that demonstrate the doctrinal fallacy of the great powers theory. As the county has grown and changed, new great problems emerged which could not have been foreseen by the founding generation. These great problems can sometimes be solved only through the exercise of great powers. Regardless of the degree of its importance, and even if it could be characterized as “great,” an implied power is necessary and proper if it is plainly adapted to effectuating an enumerated power and does not violate a constitutional prohibition. The constitutional powers of Congress are not inversely proportional to their importance.

H/t: Legal Theory Blog