The New Jurisprudence of the Necessary and Proper Clause

Posted: 14 Mar 2012 Last revised: 20 Oct 2015

See all articles by Randy Beck

Randy Beck

University of Georgia School of Law

Date Written: March 13, 2012

Abstract

Several recent Supreme Court decisions evidence reinvigorated principles of federalism and an increased willingness to strike down legislation as beyond the power of Congress. In this article, Professor Beck considers this trend in light of the persistent debate surrounding the implied powers of Congress under the Necessary and Proper Clause. Because the Necessary and Proper Clause represents the outer boundary of congressional authority, consideration of this provision necessarily illuminates discussions of state sovereignty and reserved powers.

The article begins with an historical overview of the Framers’ understanding of the Necessary and Proper Clause, leading up to the Supreme Court’s decision in McCulloch v. Maryland. The Court’s decision in McCulloch, through Chief Justice Marshall, laid the groundwork for our modern understanding of the clause. An historical account of the Necessary and Proper Clause demonstrates that the “propriety” limitation is best understood as requiring an appropriate relationship between congressional ends and means. The propriety requirement should not be understood to provide textual support for free-standing principles of federalism, such as state sovereign immunity or the prohibition against commandeering of state officials. Thus, the article concludes that the Court’s reliance on the propriety limitation in Printz v. United States and Alden v. Maine was misplaced. These decisions must be justified, if at all, on the structural and historical arguments employed by the Court. At the same time, in two recent commerce-power decisions, United States v. Lopez and United States v. Morrison, the Court failed to invoke the Necessary and Proper Clause where the propriety limitation was exactly apposite, and supported the Court’s analysis. Constitutional doctrine will benefit from this historical account of the Necessary and Proper Clause, as it highlights the modern implications of Chief Justice Marshall’s understanding of the judicially enforceable limitations on congressional power.

Full text of the article is available at the University of Georgia School of Law Digital Commons website.

Keywords: Necessary and Proper Clause, Supreme Court, McCulloch v. Maryland, Federalism, Printz v. United States, Alden v. Maine, Commerce Power, Constitutional Law, United States v. Lopez, United States v. Morrison

JEL Classification: K19

Suggested Citation

Beck, Randy, The New Jurisprudence of the Necessary and Proper Clause (March 13, 2012). University of Illinois Law Review, pp. 581-650, 2002, Available at SSRN: https://ssrn.com/abstract=2021094

Randy Beck (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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