The (Not So Dire) Future of the Necessary and Proper Power after National Federation of Independent Business v. Sebelius

Abstract

National Federation of Independent Business v. Sebelius (“NFIB”) has generated much discussion, but too little of it has focused deeply on whether, and the extent to which, the decision will limit the scope of the Necessary and Proper Clause. Following NFIB, many observers doubtless found themselves asking the same questions they were asking in 1995 after the Supreme Court’s decision in United States v. Lopez drew a line in the sand after sixty years of imposing virtually no limits on the federal commerce power: Was the Court really serious about imposing vigorous federalism limits on one of Congress’s biggest powers? This article seeks to answer that question, arguing that NFIB will have a relatively minor overall impact on the scope of the necessary and proper power, even if the Court remains committed to judicial enforcement of federalism. At first blush, it appeared that NFIB could have a dramatic impact, as it seemed to apply new and stringent limits on the necessary and proper power. While the Court recently warned that federalism limits the reach of the necessary and proper power, it had not, until NFIB, gone as far as suggesting that Congress may not regulate indirectly through the necessary and proper power that which it may not regulate directly through an enumerated power. Nevertheless, this article explains that, viewed in the light of decisions handed down leading up to and following NFIB, the decision does not signal a drastic change in doctrine. The Necessary and Proper Clause was not the target of the Court’s federalism ire in NFIB, but rather was the victim of the Supreme Court’s continuing federalism campaign to rein in the federal commerce power. As a result, it should be business as usual (deference to Congress) in cases where Congress seeks to enforce an enumerated power other than commerce, while use of the power in combination with the commerce power likely will trigger closer scrutiny. And if the power is used so aggressively as to transform the Necessary and Proper Clause into a general police power, then it is game over, no matter what enumerated power Congress is trying to enforce.

Keywords: necessary and proper, individual mandate, commerce power, federalism