Mike Rappaport: The Necessary and Proper Clause

Since the New Deal, progressive lawyers have argued that the [Necessary and Proper] Clause provides an additional step, or two, or three, beyond the enumerated powers of Congress.  Moreover, they have also argued that Congress’s judgments about these matters are entitled to great deference.  Both of these arguments have won favor in the Supreme Court.

Official 2005 photo of Chief Justice John G. R...

Official 2005 photo of Chief John G. Roberts (Photo credit: Wikipedia)

It was my privilege last week to spend time with Professor Rob Natelson, referred to by Mike Rappaport in his article, in considering the impact of the recent decision on Obamacare in relation to the Necessary and Proper Clause’s new restrictions in that decision.

Natelson was one of the first scholars to blow the whistle on Obamacare’s unconstitutionality, and was understandably disappointed in Chief Justice Roberts’ decision to uphold the mandate on the flimsy grounds of it being a tax and therefore it is ok.

What Natelson did, however, was express his delight in the court’s reining in, after lo these many years after Wickard v. Filburn was decided in 1942 that Roscoe Filburn’s raising wheat on his farm for his own personal consumption somehow impacted interstate commerce. He called it a “signal accomplishment” with which he personally had much to do. In his brief to the court Natelson spelled out, clearly and persuasively, that the Wickard decision was wrong, and the court’s majority bought his argument.

Natelson uncovered a clear exposition on the matter, a pamphlet written by one of the founders, Josiah Quincy, and Rappaport quoted Natelson’s comments on it here:

Perhaps the most interesting part of the pamphlet illustrates why, as has been documented extensively, the Founders understood the Necessary and Proper Clause (Article I, Section 8, Clause 18) to be a mere recital, and not an affirmative grant of power to Congress. At that point, Quincy was discussing the Boston Port Bill’s requirement that the Town of reimburse the East Indian Company for the tea tossed into the harbor. Quincy pointed out (page 18-19) that it would be illegal for Boston to pay the Company, because another Parliamentary statute limited Town expenses to “maintenance and support of the ministry, schools, the poor, and defraying other necessary Town Charges.”

“Will any now say,” Quincy wrote, “that the monies appointed to be paid to the East-India [Company], come within the words of ‘necessary town charges?’ When did the town contract the debt, or how are they subject to it?”

This is perfect. The Necessary and Proper Clause has been conveniently stretched out of all proportion to meet the goals of the Supremes in the past to expand greatly the power of the central government. This recognition by the present court is a watershed moment. It’s too bad more light hasn’t been shed on the subject.

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