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

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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. Next time… We will move on the oversight function Power to investigate
Pages
And then amendment enforcing powers