Necessary and Proper Clause returned to the Original Understanding. Podcast with Ilya Somin, and more

Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from whether it is “necessary.” And CJ Roberts’ opinion is the first in Supreme Court history to find that a law which is “necessary” is not proper. Ilya’s amicus brief was the key brief on the necessity of making separate inquiries into “necessary” and “proper.”

That’s not the only way in which the Roberts opinion brings interpretation of the Necessary and Proper Clause back to the proper, originalist understanding which was explicated in McCulloch. The Roberts opinion explains that the NP Clause grants Congress no additional powers; the clause merely expresses the default legal rule that when an enumerated power is granted, the grant also includes lesser powers which are “incidental” to the enumerated power. In McCulloch, Chief Justice Marshall found it necessary to spend many pages applying the doctrine of incidental powers before he could reach the other issues about the constitutionality of the Second Bank of the United States.

The Roberts opinion is one of many, many post-McCulloch opinions to utilize the doctrine of incidental powers, but it is the first opinion to hold that a particular law is not valid because it is not an incident of an enumerated power. The originalist, Marshallian understanding of the doctrine of incidental powers was the subject of the amicus brief which Rob Natelson, Gary Lawson, and I wrote. The brief is based on the book The Origins of the Necessary and Proper Clause, published by Cambridge University in 2010, and co-authored by Natelson, Lawson, Geoffrey P. Miller and Guy I. Seidman.

The brief devotes much attention to the newspaper essays which John Marshall wrote defending the McCulloch decision. These essays were collected in the book John Marshall’s Defense of McCulloch v. Maryland, published in 1969 and edited by Gerald Gunther. The Roberts opinion is the first in Supreme Court history to cite this book, and the first to cite Marshall’s essays.

The Roberts opinion joins McCulloch v. Maryland as an essential case in any law school textbook that covers the Necessary and Proper Clause. While the Roberts opinion on the Commerce Clause and the Spending Clause brings current interpretation of those clauses closer to the original understanding, current interpretation remains a long way from original meaning. For the Necessary and Proper Clause, however, the Roberts opinion goes all the way.  As of yesterday, Supreme Court doctrine about the Necessary and Proper Clause has fully returned to 1791/1819. The originalist victory is complete.

For some background on the doctrine of incidental powers, one starting point is the Lawson/Kopel article Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011). A follow-up article, Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), replies to Andrew Koppelman’s warning that following McCulloch‘s originalist doctrine will cause national catastrophe. It looks like we’ll find out if he’s right. If you’re assuming that he is, and thus time is short before The End, a condensed version of our Yale article is available on Legal Workshop.