The New Jurisprudence of the Necessary and Proper Clause (original) (raw)
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This article explores the outer limits of congressional power. The debate over those limits began in 1791 when James Madison challenged the constitutionality of Alexander Hamilton’s Bank of the United States in the First Congress and has continued through the present. According to Madison, the Necessary and Proper Clause was constrained by three doctrines: implied powers must be “direct and incidental” to express powers; they could not be used to invert constitutional ends and means; and powers of exceptional importance could not be derived from implication. Although Madison’s challenges to the Bank failed in the First Congress and in McCulloch v. Maryland, his limiting doctrines have recently been resurrected in an impressive body of scholarship and adopted by several Supreme Court Justices. In addition, eminent scholars have meticulously analyzed McCulloch and argue that this foundational opinion, conventionally regarded as affording great discretion to Congress in the use of impl...
The Aggregate and Implied Powers of the United States
The American University law review, 2019
for their very helpful suggestions and criticisms. Of course, all errors in this article are mine. My thanks also to the participants at the Originalism Conference at the University of San Diego and the Writers' Workshop at Temple Law School for their comments. I appreciate the excellent research assistance of Kevin Todorow, Jude Joanis, and Catherine Cuff. This Article advances a theory, original to the literature, of how the enumerated powers of the national government should be construed and applied in determining the scope of national power. The Constitution vests four great aggregate powers in the government of the United States-providing for the common defense; conducting foreign relations; preventing and resolving disputes between the States and the United States, and between the States themselves; and creating and maintaining a national economic union. Virtually all of the specific enumerated powers of the three branches are contained in these four clusters of power. These aggregate powers are "ends" of the national government, and legislation that carries these powers into effect are appropriate "means" of congressional authority. The framework presented in this Article is based on construing the Constitution as a whole and not as the collection of unrelated parts; the historical origin of the enumerated powers in the long-standing distribution of powers between the imperial British government and the colonial assemblies that was carried forward into the Constitution; Hamilton's arguments on the scope of national power in Federalist 23 and the opinion on the Bank of the United States; Marshall's adoption of those arguments in McCulloch and Story's in his Commentaries; and Congress's authority to carry into execution not only specified enumerated powers but also "all other Powers vested by this Constitution in the Government of the United States." This framework explains the validity of national powers that are outside of the classical means-ends model. It respects federalism by giving Congress plenary authority over four discrete areas that are essential to the Union, while allowing for extensive legislative authority in the States and the people. And it has implications for the separation of powers and the extent to which Congress may expand the jurisdiction of the federal courts beyond the categories enumerated in Article III. 106. Id. at 620-23 (Rutledge, J., concurring). 107. Id. at 590-94, 619. 108. Jackson's and Rutledge's arguments would also presumably apply to the Territories. 109. The classical decisions expanding the commerce power pre-dated Tidewater. See
NFIB V. Sibelius: Proportionality in the Exercise of Congressional Power
SSRN Electronic Journal, 2000
With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.
On Supreme Court Regulation; The Congressional Duty in Article III (2024)
As dissatisfaction with the Supreme Court grows, and calls for its reform continue to increase, it is clear from the most commonly-proposed solutions that Congress has abandoned its own reading of the Constitution and has ceded to the Supreme Court the unlimited power to re-write, or “interpret,” the Constitution in any manner the Court sees fit. Congress has allowed the Supreme Court to do this without any accountability whatsoever for the Court, and without the Court having to follow Article V amendment processes. With Congress having surrendered virtually absolute power to the Supreme Court for over two centuries, Supreme Court decisions determine the content of the Constitution, rather than the content of the Constitution determining Supreme Court decisions. Congress simply refuses to fulfill or acknowledge its Article III duty to regulate the Supreme Court. “On Supreme Court Regulation” combines research and political theory in examining how the Supreme Court functions, analyzing how that functioning has scant relationship to the duties assigned to the Court by the Constitution, and revealing how Congress has abrogated its duty to regulate the Supreme Court and prevent the concentration of power within the Judiciary. The system organized by the Constitution is compared herein with the judicial, political, social, and economic system created by the Supreme Court, which generally functions in direct contravention of the Constitution. The research and political theories presented in this project are not readily found elsewhere. It is possible they are available nowhere else, and certainly not all together in a single document. This information demonstrates the critical importance to Americans of understanding how radically different the United States would be—far more user-friendly, free, just, and isonomic—if the Supreme Court and Congress scrupulously followed the duties assigned them by the Constitution.
2014
In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power-Justice Jackson's tripartite framework and the historical gloss on executive power-congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks failures of checks and balances and constitutionalizes the transfer of power to the President. Possible solutions include congressional or judicial development of a jurisprudence of independent presidential power, adoption of a presumption against authorization, and treatment of presidential power controversies that turn on congressional authorization as political questions. At a minimum, courts and commentators should be less sanguine about the leading approaches to assessing presidential power.
The Original Meaning of the Necessary and Proper Clause
2003
This article presents evidence of the original public meaning of the Necessary and Proper Clause. I show that the meanings of "necessary" we have inherited from John Marshall's discussion in McCulloch v. Maryland - a choice between "indispensably requisite" on the one hand and mere "convenience" on the other - is undercut by the available evidence. The truth lies somewhere in between. While these findings will, of course, be of interest to originalists, they should also interest the many constitutional scholars who consider original meaning to be one among several legitimate modes of constitutional analysis, as well as those scholars for whom original meaning is the starting point of a process in which it is "translated" into modern terms. By either account, it is important to get the original meaning right, even if it is not alone dispositive of today's cases and controversies. This is the companion to two previous articles - "Th...
1998
In 1803, Man did not think he was powerful enoup to g!ve orders to Conand. the Pre.ident. After the elections of 1800, with the Jeffersonians in con-Con the Pl'8lidency the Federalist Court was in no ~sition to dictate to the he •. Mal'8uif realized that he could not u~Jlola the eonstitu-ttonaUty of 13 or the Judiciary Act of 1789 and directSeeretary of State 20 James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshal! believed that the Court was supreme on matters of constitutional interpretation. This conclusion is bome out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it tum.ed its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase: I think. the modem doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault. The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he pl~yed a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judicial"l'Junctioned as a yea-saying, not a negative, branch. The respect of the Court for congressional judgments is evident in some decisions in the 1850s. In 1852, the Supreme Court held that the height of a bridge in Pennsylvania made it "a nuisance.' Congress responded with legislation that declared the bridges at issue to be "lawful structures," and the Court then ruled that the bridges were no longer unlawful obstructions. l In the second decision, Justices McLean, Grier, and Wayne objected that Congress could not annul or vacate a court decree and that the congressional statute was an exercise of judicial, not legislative, power. Yet the Court has never adopted that position. As the Court noted in 1946: "whenever Congress' judgment has been uttered affirmatively to contradict the Court's previously expressed view that specific action taken by the states in Congress' silence was forbidden by the commerce clause, this body has accommodated its previous judgment to Congress' expressed approval." 2 Settling Constitutional Issues In the May 1997 issue of Harvard Law Review, Larry Alexander and Frederick Schauer argue that the Supreme Court should be the exclusive and authoritative interpreter of the Constitution. Although they caution that their study is not based on historical precedents, they conclude that the Court is best situated to decide and settle constitutional issues, particularly transcendent questions. They believe that vesting such power in the courts would contribute to political stability. Neal Devins and I talked about this article. We tried to recall a time when the Court ever "settled" a constitutional issue, transcendent or otherwise. Certainly the decision in Dred Scott did not settle the slavery issue. Judicial resistance, over a period of almost forty years, to the use of the commerce power by Congress did not settle the issue of national regulation. Eventually the Court gave way. Roe v. Wade did not settle the abortion issue. In 1992, the Court jettisoned the trimester standard that had drawn criticism from many quarters. The decision in Furman v. Georgia (1972) to strike down death-penalty statutes in Georgia and Texas as cruel and unusual did not settle that issue. Under heavy public pressure the Court later acknowledged that the death penalty, if accompamed by revised procedures, was constitutional.
Congress\u27s Power to Preempt the States
2012
In this Article, part of a symposium on federal preemption of state tort law, I build upon my earlier work on the nature of preemption to try and deepen the conceptual and constitutional foundations of the subject. I argue that this neglected dimension must be moved to center stage if preemption doctrine is to have a coherent and principled framework. In particular, the key issues are the nature, source, and limits of Congress\u27s power to preempt the states. The result is that preemption should be understood as a discretionary power of Congress the source of which lies in the Necessary and Proper Clause. Most importantly, one and the same constitutional limit on this power is strongly suggested by analyzing it from all four of the following perspectives: (a) its source in the Necessary and Proper Clause; (b) its similarity to two other congressional powers to alter federal-state relations, (c) the political safeguards of federalism, and (d) comparative constitutional law. This con...