* NATURE & SCOPE OF NATIONAL POWERS- Necessary & Proper Clause (N&PC)

Question 1

Necessary & Proper Clause (N&PC) in Constitution:

Answer 1

a) Article I, §8: Enumerated powers of the federal government
b) Article I, §8, clause 18: The Congress shall have Power…to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

Question 2

a) Necessary and proper means:

Answer 2

i) in 1818: “convenient, or useful, or essential.” (McCulloch v. Maryland);
ii) in 2010: “rationally related to the implementation of a constitutionally enumerated power.” (United States v. Comstock)

Question 3

McCulloch v. Maryland (1819)(p. 68)

Answer 3

National bank created

i) Held: Congress has the power under the N&PC to create a national bank (power to declare war: need to move money around for it).
ii) Rule: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional.”
iii) Expressed v. Implied Powers (penumbras - powers around those expressed in the constitution) - What connection must there be for the power to be implied?
(1) There must be a direct connection between the power and the expressed power
(2) Implied power must be reasonably related to the expressed power
(3) Once you go beyond pure necessity, there are concerns as to that the limit really is? What is to stop the power from being anything that bears a connection to an expressed power?

Question 4

United States v. Comstock (2010)(p.73):

Answer 4

i) Statute authorised DOJ to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released.
(1) Does congress have the authority to keep you in some sort of a facility either for your own benefit or benefit of others because of a mental illness which is unrelated to why you found yourself in fed prison in the first place? ii) Rule: In determining whether the N&PC grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.
(1) If there are federal crimes, there is an implied power to create federal prisons. Therefore there is the power to do everything necessary to allow these to operate, including the power to keep people in prison.
iii) Thomas, joined by Scalia, dissented
(1) The N&PC does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority
(2) The Constitution gives states no power to decline the responsibility of custody.

Question 5

d) United States v. Kebodeaux (2013)(Supp. p.3):

Answer 5

By regulation, a statute (SORNA) was retroactively applied to sex offenders who failed to register when they moves within states.

i) Held: The N&PC granted Congress the power to create federal crimes and regulate their punishment (power to create federal crimes comes from power to regulate military conduct and to impose punishment if those regulations are not followed) and SONRA could be applied to D because he was subject to similar fed requirements at the time of his release.
i) Dissent: SONRA is not directed at carrying to execution any of the federal powers enumerated in the constitution. Neither the Spending Clause, Commerce Clause, nor regulation of Land and Naval forces power is aimed at protecting societies from sex offenders. Further, the statute is limited to individuals already in the custody of the fed government.