Lecture 6 The Legislature Part 2: Legislative Powers: Necessary and Proper Clause

This Lecture I am going to split up this part For this lecture, we will cover the material in pages 144-156 Mainly dealing with McCulloch v. Maryland

Sources and Scopes of Legislative Powers Article 1, Section 8 lists all the specific enumerated and implied powers which the Congress has Because there is a list, some argue this means to the exclusion of all others Some are somewhat vague Commerce power- there is a whole chapter on it Gibbons v. Ogden (1824) What if in conflict with other provisions? Some other powers are given by other amendments They will say Congress shall have the power to enforce by appropriate legislation Inherent powers- National sovereignty, not constitutional grants

Legislative Powers So the question for the rest of this chapter is what powers does the court interpret the legislative branch to have Necessary and Proper clause This is more of a catch-all- the elastic clause “to make laws 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” Do we give this an expansive reading or a limited or strict reading Federalists said expansive, Jefferson said narrow

McCulloch v. Maryland (1819) One of the original debates upon the election of George Washington was Hamilton wanting to set up a National Bank and assume the debts of states The issue of constitutionality was something Washington asked his cabinet The Court never did Jefferson thought it was not constitutional He said it was not specifically delegated as a power given to Congress Very narrow reading- only express powers Necessary vs. convenient powers Hamilton was a supporter “Implied powers are to be considered as delegated equally with express ones” The government has the right to establish a corporation He takes a broad reading of the necessary and proper clause

McCulloch v. Maryland- II The charter was for twenty years and expired in 1811 Republicans refused to reauthorize Then the War of 1812 happened So many worthless state notes flooded the market and harmed the economy Congress renews the charter in 1816 for 20 years This new national bank did not perform as well as others The Petitioner- McCulloch Branch manager in Baltimore, whose illegal activities cost the branch more than a million dollars Congress investigates Maryland imposes taxes and fees on the banks in that state McCulloch refused to pay the tax

McCulloch v. Maryland- III The questions the Court asked Did Congress have authority to charter the bank? Could Maryland tax the bank? This was a big case at the time Both sides had big names Court extended argument times Arguments in favor It was in place for 20 years and people thought that to be constitutional, so its too late to change The necessary and proper clause Proper to the operation of government

McCulloch v. Maryland- IV Arguments against The bank existing for a while is of no importance The power is not delegated It is not necessary and proper since it has no foundation in the Constitution It may have been necessary and proper in 1791, but not now The opinion was unanimous by Marshall What is the extent of the powers granted? The power to charter a bank is not listed He looks at the construction of the necessary and proper clause and sees the word necessary as the key word Means necessary to an end, not absolutely necessary

McCulloch v. Maryland- V More from Marshall The founders did not mean for it to be narrowly written This doesn’t mean Congressional powers are unlimited though Marshall sided with his late friend Hamilton on interpretation Maryland also could not tax the bank The bank dies during the Jackson Administration Lasting effects of the decision Absolutely not considered Deference to what Congress considers necessary Means to an end

United States v. Comstock (2010) Can the government civically commit a sexually violent felon past their release date? A 7-2 Court (Breyer) says yes To help ensure enforcement of federal laws Federal law goes beyond what is enumerated in the Constitution already Thomas and Scalia say no It is an important end Does not execute any enumerated power Needs to be a nexus between the means and end Let’s save the Affordable Care Act discussion for when we read the case

Five considerations in Comstock First, the Necessary and Proper Clause grants Congress broad power to enact laws that are "rationally related" and "reasonably adapted" to executing the other enumerated powers. Second, the statute at issue "constitutes a modest addition" to related statutes that have existed for many decades. Third, the statute in question reasonably extends longstanding policy. Fourth, the statute properly accounts for state interests, by ending the federal government's role "with respect to an individual covered by the statute" whenever a state requests. Fifth, the statute is narrowly tailored to only address the legitimate federal interest

Next time… We will move on the oversight function Power to investigate Pages 156-171 And then amendment enforcing powers