Necessary and Proper CLause Reaction Paper



THE NECESSARY AND PROPER SLIPPERY SLOPEThe Necessary and Proper Clause grants Congress the authority to take action beyond those outlined specifically in Article I; §8 of the US Constitution, so long as those actions are predicated on one of the enumerated powers. The Supreme Court in McCulloch v. Maryland interpreted this Constitutional power as one that allows Congress to take practical steps in executing their other enumerated powers, however, failed to limit the Necessary and Proper Clause. The Court defined “necessary” in the most generous light in McCulloch and expanded the scope of the clause in US v. Comstock. Comstock allowed Congress to predicate their means of power to not only an enumerated power in the US Constitution, but also a statute or power derivative of an enumerated power. While I rarely ever find myself agreeing with Justice Thomas and Justice Scalia, the dissent in Comstock provides an especially compelling argument: Congress’s authority can be no more than one step removed from an enumerated power. The majority opinion in Comstock seems to not only expand the McCulloch opinion of the clause, but once again fails to establish a clear boundary of Constitutional power Congress may have. Reading the majority’s rationale regarding the chain that Congress can use to justify their actions under Comstock makes one wonder if there ever could be a chain that is too attenuated.The Court seems to backtrack their Comstock interpretation of the Necessary and Proper Clause in National Federation of Independent Business (NFIB) v. Sebelius, however, fails to once again establish a limit on the clause. In NFIB, the Court mainly relies on McCulloch and reasserts their right to declare unconstitutional those laws by Congress that are not proper means for carrying into execution Congress’s enumerated powers. The Court concludes that Congress cannot reach to individuals who would normally be outside of the scope to draw them within their regulatory scope. This reinterpretation is more of an exception to the Necessary and Proper Clause from Comstock rather than an overruling and return to the definition in McCulloch. The Constitution was carefully written with plenty of safeguards to limit absolute power in the legislative, but Comstock’s wide and generous interpretation seem to undermine the Framer’s objective and NFIB’s exception does not seem to do enough to limit that power. If I were to write a dissent for Comstock, I would likely find myself reluctantly siding with Thomas and Scalia. While it is true that Congress needs the means to their power, these means seem to be infinite under Comstock. I do believe that universal healthcare is long overdue, however, an expanded interpretation of the Necessary and Proper Clause to accommodate the ACA in NFIB would be a dangerous expansion of the Comstock scope and it would set a risky precedent. The Court should be cautious and walk the fine line between the Comstock majority and the dissent, taking into account excessive powers that should not be regarded as incidental to the enumerated powers. Word Count: 498 ................
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