Legislative Power - The Necessary & Proper Clause

Question 1

Enumerated & Implied Powers

Answer 1

Congress has express enumerated powers, but also implied powers. The Necessary and Proper Clause is one of those implied powers which authorizes Congress to make laws not just that are absolutely essential to carrying out express powers, but also it can make laws that are “useful or convenient or conducive” to carrying out its express power like in McCulloch. It just has to be “rationally related” as seen in Comstock.

Question 2

The Necessary & Proper Clause

Answer 2

The Necessary and Proper Clause authorizes Congress to make all laws necessary and proper to carry out its express powers. McCulloch v. Maryland. The N&P Clause is broadly substantive in that it does not limit Congress to making only laws that are absolutely essential to carrying out its express powers; rather Congress may do that which is “useful or convenient or conducive” to carrying out its express power. The law only needs to be “rationally related” to the implementation of a constitutionally enumerated power to come under the scope of the authority of the N&P Clause.

Question 3

Rational Basis / Rational Relationship Test

Answer 3

Loose, deferential test used to assess whether or not the N&P clause (among other tools) has been used appropriately. If the means are reasonably related to the ends (for example, the “means” of a law making it a crime to steal mail is related to the “ends” of setting up a postal service).

Question 4

McCulloch v. Maryland

Answer 4

Gov set up fed bank in Maryland. MD wants to tax the bank, bank says no, they go to court. Court asks: Question 1) Does Congress have implied constitutional power to create a bank? Answer 1) Yes, it’s derived from the general power to tax and spend and Congress is empowered to create the bank by the N&P clause. Question 2) Can individual states tax a fed bank? Answer 2) No, because of the Supremacy Clause, a fed institution can’t be inhibited by a state law.

Question 5

United States v. Comstock

Answer 5

Mentally ill dangerous federal inmates were going to be civilly detained by federal law. The statute deferred to the States in handing over the inmates. Issue: Does the N&P clause grant Congress authority to enact a law that allows civil commitment? Holding: Yes, because it’s rationally related to enumerated powers, it’s only a small extension of an existing mental health framework for fed prisoners, it’s reasonable to restrict those inmates, it defers to the states and doesn’t violate the 10th Amendment, and it doesn’t give the feds police powers.

Question 6

Constitutional Basis for Federal Criminal Laws

Answer 6

The Court cites a handful of cases in which Congress’ power to create federal crimes has been upheld even though it is not an enumerated power. Sometimes in favor of the Spending Clause, Commerce Clause, enforcing the 14th and 15th amendments, etc.

Question 7

Comstock’s Considerations for using N&P Clause

Answer 7

1. The breadth of the Necessary and Proper Clause: uses the “means-ends rationality” test assessing “whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power”.
2. History of federal involvement in this arena: a history of federal action doesn’t make a statute constitutional in and of itself, but it can be helpful in assessing the reasonableness of the relation between the new statute and pre-existing federal interests.
3. Reasonable safety interest in safeguarding the public from danger: the gov should prevent lunatics from causing reasonably foreseeable harm to others.
4. Statute’s accommodation of state interests: because the Feds are willing to relinquish power over the prisoners to the States, the statute is actually very accommodating of state interests and therefore is not violating the 10th amendment because it isn’t encroaching on state sovereignty by deferring to them.
5. Statute’s narrow scope links it to enumerated Article 1 powers: the Court argues that the “one-step” enumerated power doctrine is not supported by precedent. They quote McCulloch where the post office example is used to illustrate how the enumerated power leads to natural inferences for implied powers to implement it and that leads to further inferred right to punish those who interfere with it. They also say that this statute doesn’t give police power because it’s narrow in scope.