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Congressional Power: Necessary and Proper Clause

Provided to students at the University of Münster and Unversity of Osnabrück.

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U.S. Constitutional Law Page 1
Legislative Powers
U.S. Constitutional Law
Congressional Power: The Necessary and Proper Clause
As always, red text indicates words you should know,
blue text takes your to external (background) resources
U.S. Constitutional Law Page 2
Legislative Powers
Goals of This Lecture
Continue to see how liberal interpretations of express
powers have increased power of federal government.
Specifically, see how the Court has interpreted the
words “necessary and proper” & why it’s called “the
elastic clause.”
See how this has affected Legislative Power.
U.S. Constitutional Law Page 3
Legislative Powers
Limited Federal Power
“All legislative powers
herein granted shall be
vested in a Congress . . .
.” Article I; Sec. 1
Plain English →
Congress limited to
express powers in the
Constitution.
“The powers not
delegated to the United
States by the
Constitution, nor
prohibited by it to the
States, are reserved to
the States . . . .” Tenth
Amendment
Plain English → States
may act unless the
Constitution prohibits the
action.
U.S. Constitutional Law Page 4
Legislative Powers
Necessary & Proper Clause
[The Congress shall have the Power] To make all
Laws which shall be necessary and propernecessary and proper for carrying
into Execution the foregoing Powers [those listed in
the Constitution], and all other Powers vested by this
Constitution in the Government of the United States,
or in any Department thereof.
- Article I, Section 8, cl 18
U.S. Constitutional Law Page 5
Legislative Powers
Factual Background of McCulloch
The Bank of the United States in Philadelphia. Alexander Hamilton argued
that the Constitution's implied powers authorized its creation.
U.S. Constitutional Law Page 6
Legislative Powers
Facts & Question Presented
Attorneys for McCulloch (Daniel Webster, left) and Maryland (Luther Martin,
right) in McCullough vs Maryland
1) Does Congress have the authority to create the Bank?
2) Is the state tax on the bank constitutional?
FACTS: Congress creates a national bank. States oppose
this. Maryland tries to tax the national bank. National bank
refuses to pay the tax.
Ad

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Congressional Power: Necessary and Proper Clause

  • 1. U.S. Constitutional Law Page 1 Legislative Powers U.S. Constitutional Law Congressional Power: The Necessary and Proper Clause As always, red text indicates words you should know, blue text takes your to external (background) resources
  • 2. U.S. Constitutional Law Page 2 Legislative Powers Goals of This Lecture Continue to see how liberal interpretations of express powers have increased power of federal government. Specifically, see how the Court has interpreted the words “necessary and proper” & why it’s called “the elastic clause.” See how this has affected Legislative Power.
  • 3. U.S. Constitutional Law Page 3 Legislative Powers Limited Federal Power “All legislative powers herein granted shall be vested in a Congress . . . .” Article I; Sec. 1 Plain English → Congress limited to express powers in the Constitution. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States . . . .” Tenth Amendment Plain English → States may act unless the Constitution prohibits the action.
  • 4. U.S. Constitutional Law Page 4 Legislative Powers Necessary & Proper Clause [The Congress shall have the Power] To make all Laws which shall be necessary and propernecessary and proper for carrying into Execution the foregoing Powers [those listed in the Constitution], and all other Powers vested by this Constitution in the Government of the United States, or in any Department thereof. - Article I, Section 8, cl 18
  • 5. U.S. Constitutional Law Page 5 Legislative Powers Factual Background of McCulloch The Bank of the United States in Philadelphia. Alexander Hamilton argued that the Constitution's implied powers authorized its creation.
  • 6. U.S. Constitutional Law Page 6 Legislative Powers Facts & Question Presented Attorneys for McCulloch (Daniel Webster, left) and Maryland (Luther Martin, right) in McCullough vs Maryland 1) Does Congress have the authority to create the Bank? 2) Is the state tax on the bank constitutional? FACTS: Congress creates a national bank. States oppose this. Maryland tries to tax the national bank. National bank refuses to pay the tax.
  • 7. U.S. Constitutional Law Page 7 Legislative Powers Location of Clause is Decisive Art I, Sec 8 Sets forth powers that Congress has. Chief Justice Marshall says the Necessary and Proper Clause is placed here to expand powers. Art I, Sec 9 Contains a list of things Congress cannot due. Places limits on Congress. Marshall says if intent was limited power, then Necessary & Proper Clause would have been placed here.
  • 8. U.S. Constitutional Law Page 8 Legislative Powers Constitutionality of the Law Congress may choose any means, not prohibited by the Constitution, to carry out its express authority. Necessary means useful or desirable, not indispensable or essential. the “provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” This does not equate to limitless authority. Must further enumerated powerenumerated power Must not violate the Constitution.
  • 9. U.S. Constitutional Law Page 9 Legislative Powers The Necessary and Proper Clause in Practice U.S. vs Gettysburg Elec. Ry. Co. (1896) Congress passes law creating Gettysburg National Military Park, private property must be confiscated (Enteignung) . ISSUE - Does the Congress have the power to confiscate land? Expressly, No. BUT: “Any act of congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country, and to quicken and strengthen his motives to defend them” furthers the express power to create military, defend the country and declare war.”
  • 10. U.S. Constitutional Law Page 10 Legislative Powers United States v. Comstock Federal → “sexually dangerous federal prisoners” may be placed in mental institution (psychiatrische Klinik) after serving prison term. ISSUE – does this fall within one of Congress’s express powers.
  • 11. U.S. Constitutional Law Page 11 Legislative Powers United States v. Comstock HOLDING: Congress may pass laws that are “rationally related to the implementation of a constitutionally enumerated power.” Enumerated power here = Commerce Clause. Crimes & Imprisonment that “substantially affects” commerce. Imprisonment includes mental health care. DISSENT: dangerous sex crimes involve non- economic activity, so Commerce Clause cannot be used.
  • 12. U.S. Constitutional Law Page 12 Legislative Powers Interplay Between the Clause Law that is “necessary and proper” must advance an enumerated power. Liberal interpretationLiberal interpretation of Commerce Clause = easier to find something as an “enumerated power.” Once enumerated power is identified, easier to use Necessary and Proper Clause
  • 13. U.S. Constitutional Law Page 13 Legislative Powers Gonzalez v. Raich Facts: Federal law = illegal to possess, grow or distribute marijuana. California law = legal to possess and/or grow marijuana for medical purposes. Dr. gave Raich prescription to grow and use. Federal agents raided Raich’s home and destroyed her plants. Claiming these plants violated federal law.
  • 14. U.S. Constitutional Law Page 14 Legislative Powers Gonzalez v. Raich Questions for consideration: On its face law is a valid exercise of legislative power under the commerce clause. BUT – can this law be applied to individuals who are acting legally under state law? Does the commerce clause allow this law to be applied to individuals in this manner? Is this a conflict between state and federal law? NOTE – we will address this question in the Federalism lecture.
  • 15. U.S. Constitutional Law Page 15 Legislative Powers Gonzalez v. Raich Majority Opinion Commerce Clause → Congress can regulate this individual, local and arguably non-economic behavior. Five Justices rely on Wickard Accumulated effect principle → “class of activity” (growing and consuming drugs) and large number of people doing this = “substantial effect on interstate commerce” (Lopez). Justice Scalia concurs Congress has power to regulate pot under commerce clause It is “necessary and proper” to apply this law here.
  • 16. U.S. Constitutional Law Page 16 Legislative Powers Understanding Raich Seven Justices act consistently: Four apply Commerce Clause broadly (Lopez dissenters) and three narrowly (Lopez majority) Two Justices narrowly applied Commerce Clause in Lopez but broadly here. Why? Answer – overall scheme of controlling illegal drugs (economic activity) would be harmed if the law could not be enforced against these individuals.