The Reach of Congressional Power: Introduction and “The Necessary and Proper Clause”

(Taken from: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/nec&proper.html)

The Issues:

What does it mean to be a government of enumerated powers? 

How should Article I’s “Necessary and Proper Clause” be construed?

The United States is a government of enumerated powers.  Congress, and the other two branches of the federal government, can only exercise those powers given in the Constitution.

The powers of Congress are enumerated in several places in the Constitution.  The most important listing of congressional powers appears in Article I, Section 8 (see left) which identifies in seventeen paragraphs many important powers of Congress.  The last paragraph of Article I, Section 8 grants to Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers”–the “Necessary and Proper Clause.”  The proper interpretation of the Necessary and Proper Clause was the subject of a heated debate between such important figures as Alexander Hamilton (who argued that the clause should be read broadly to authorize the exercise of many implied powers) and Thomas Jefferson (who argued that “necessary” really meant necessary).  Hamilton’s more flexible interpretation makes possible a strong central government, whereas Jefferson’s narrower interpretation strengthens states’ rights.

The famous case of McCulloch vs Maryland considered whether Article I, Section 8 gave Congress the power to create a national bank and, if so, whether the state of Maryland could tax it.  For nine days, Daniel Webster and former Constitutional Convention delegate Luther Martin jargued the case before the justices of the Supreme Court.  Chief Justice John Marshall, writing for the Court, found the Necessary and Proper Clause gave Congress the flexibility to create the bank as an aid to carrying out its enumerated borrowing and taxing powers and that Maryland’s taxation of the bank violated the Supremacy Clause.

1. S. vs Gettysburg Elec. Ry. Co. (1896) considered whether Congress had the power to condemn a railroad’s land in what was to be Gettysburg National Military Park. Writing for the Court, Justice Peckham found that the power to condemn the railroad’s land was implied by the powers of Congress to declare war and equip armies because creation of the park “tends to quicken and strengthen” the motives of the citizen to defend “the institutions of his country.”

Skipping forward more than a century to the modern era, we see the Court in U. S. v Comstock (2010) give an especially broad reading to the Necessary and Proper Clause.  In Comstock, the Court upheld a federal law that authorized the continuing detainment, under a civil commitment program, of potentially dangerous sexual offenders who had completed their prison terms.  The Court found the law “reasonably adapted” to a “legitimate” and constitutional end of government, and therefore to be constitutionally supported by the Necessary and Proper Clause.  Writing for the Court, Justice Breyer said the fact that the law was several steps removed from any of the enumerated powers of Article I was not fatal.  Justices Thomas and Scalia dissented, arguing that the law “executes no enumerated power,” and was therefore unconstitutional.

DISCUSSION QUESTIONS

1. The alternative to a government of enumerated powers is, of course, a government of unenumerated powers. The Constitution might have said “Congress shall have all powers not specifically prohibited elsewhere in this Constitution.”  What are the advantages and disadvantages of each system?
2. It would be silly to say, for example, the “power to establish post offices” did not include the power to print postage stamps or pay mail carriers. But does it also include the power to advertise the joys of stamp collecting on television?  How broadly or narrowly should the enumerated powers be read?  Should the “Necessary and Proper Clause” be interpreted as authorizing actions rationally related to one of the listed powers, or only actions “necessary” to carrying out a listed power?
3. Thomas Jefferson had serious doubts as to whether the Constitution gave him the power to acquire land from France through the Louisiana Purchase, but he went ahead with the deal anyway. Was the Louisiana Purchase constitutional?  What might be the constitutional source for the power to acquire lands?
4. In McCulloch vs Maryland, Chief Justice Marshall notes that the Constitution is not a statute, and suggests that it should be read more liberally and flexibly than a statute so that it might serve the ages. Do you find Marshall’s argument about constitutional interpretation persuasive?
5. Thomas Jefferson was none too pleased with the decision in McCulloch. Jefferson said, “The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric.”  What do you think about Jefferson’s characterization?
6. In Gettysburg, the Court says that to justify an exercise of congressional power, “any number of powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred.” This is the so-called “implied powers doctrine.”  Is the Court now moving in the direction of abandoning this doctrine and insisting upon more specific textual support to sustain exercises of federal power?
7. What exactly was the enumerated power, if any, that the civil commitment program upheld in Comstock executes? Do you think the program is too far removed from any of the enumerated powers to be unconstitutional?
8. What implications does Comstock have for the debate about the constitutionality of the 2010 healthcare reform legislation? Does the decision suggest that mentally unstable and uncurable jihadists being held at Guantanamo or elsewhere could, constitutionally, be kept in detention forever?