Michael Greve on the Proper Meaning of “Proper” in the Necessary and Proper Clause

At the Law and Liberty Blog, my George Mason colleague Michael Greve has posted an insightful commentary on my forthcoming article analyzing the proper meaning of “proper.” Michael agrees with my conclusion that the individual health insurance mandate was improper, but takes issue with some of my reasoning:

My colleague Ilya Somin has penned a good piece on “The Individual Mandate and the Proper Meaning of ‘Proper’,” arguing that Chief Justice John Roberts’ opinion in NFIB v. Sebelius has “moved our jurisprudence closer to the proper meaning of proper.” Moreover, the Chief was right to conclude that the notorious individual mandate flunks a proper “proper” test. I agree with that assessment and much else in Ilya’s instructive article, though perhaps for somewhat different reasons.

The basic proposition is that “proper” in the Necessary and Proper Clause must have some independent meaning (independent, that is, from “necessary”). A “minimalistic” reading of “proper,” Ilya writes, holds that Congress may not pass laws that imply a limitless understanding of congressional powers, or which would render large parts of the Constitution redundant. (In other words, a constitutional interpretation that can’t handle broccoli must be wrong.) A broader reading, advocated by a scholars’ amicus brief in NFIB v. Sebelius… and suggested twice in Chief Justice Roberts’ opinion, picks up John Marshall’s M’Culloch suggestion that the Necessary and Proper Clause encompasses “incidental” powers but not “great substantive and independent” ones. A power to impose mandates (the argument concludes) flunks that test.

I’m not entirely happy with either formulation. The “minimalistic” reading simply restates the principle of limited and enumerated powers, which would control (and since at least Gibbons v. Ogden has controlled) even without “proper.” And the broader reading rests on a distinction that to my mind was suspect the day it was announced. (Nobody ever incorporates something for its own sake, the Chief wrote in M’Culloch; the power didn’t have to be enumerated because it is incidental. But nobody ever taxes for the heck of it, either; yet that power is enumerated.)

I’m not persuaded by Michael’s critique of either the minimalistic or the broader interpretation of “proper.” If the Necessary and Proper Clause were a mere “Necessary Clause” with the word “proper” omitted, Congress might well have virtually unlimited power, at least if necessary is defined broadly as anything that is in some way “useful” or “convenient” for executing some other enumerated power (which is the definition adopted by the Supreme Court in the famous 1819 case of McCulloch v. Maryland). As I explain in my article, virtually any mandate or regulation of any kind could be justified on that basis. Even the famous broccoli mandate might be a convenient way of regulating the interstate market in food, and thereby permissible under a combination of the “Necessary Clause” and Congress’ power to regulate interstate commerce. This is not an inevitable interpretation of “necessary.” But it’s plausible enough that the word “proper” was deliberately inserted into the Constitution in part to prevent courts from adopting this sort of view.

Michael’s critique of the broader view of “proper” advocated by Chief Justice Roberts and the scholars’ amicus brief also has flaws. The distinction between an incidental power and a “great substantive and independent one” is not based on the idea that the latter exists “for its own sake,” while the former is purely instrumental. All powers are essentially instrumental. Rather, the distinction is between powers that are relatively minor compared to the greater power they help to execute and those that are major grants of power in their own right. To put it more crudely, the argument is that the Necessary and Proper Clause can be used to give a dog a tail to wag, but not to create a dog where the other enumerated powers only create a tail. The power to tax is a massive power in its own right, and therefore could not have been created by the Necessary and Proper Clause if it were not established on its own. Taxation is a dog, not a tail.

As I explain in my article, the minimalistic interpretation of “proper” is potentially compatible with the incidental power interpretation. The former holds that “proper” at the very least excludes assertions of power that give Congress unconstrained authority or render other congressional powers redundant. But it doesn’t necessarily require us to conclude that those are the only assertions of federal power that might be improper.

By the way, the scholars’ amicus brief Michael refers to was written by co-blogger David Kopel, on behalf of three leading Necessary and Proper Clause scholars. The brief lays out their theory much more fully than I can do here, or even in my article.

Michael’s post also advances his own interpretation of “proper”:

Necessary” is a means-ends test: legislation must be necessary (convenient, useful) to a constitutionally provided-for end. “Proper,” in contrast, can’t be a means-ends test, at least not exclusively: if it were, it would be swallowed by ”necessary” and judicial deference canons. It’s best read (to my mind) as shorthand for the proposition (Marshall’s proposition) that legislation must be consistent with the letter and the spirit of the Constitution—not its ghost but its structural principles, including principles that (unlike the principle of limited and enumerated powers) aren’t immediately obvious.

The principle here at issue is the distinction between a prohibition and an affirmative command. That distinction is better than the (admittedly, related) distinction between regulating “activity” (okay) and “inactivity” (not okay) because the Constitution itself makes it: explicit powers to command (like the Militia Clauses and, by conventional—though not unassailable—understanding the Supremacy Clause, as to state judges) are exceedingly few and, moreover, institutionally cabined. Whence we (or at least I) infer that unless the power to command is provided for (textually or by unmistakable inference, as with military conscription) it’s excluded.

This view isn’t necessarily incompatible with my minimalistic interpretation, for the same reason that the incidental power theory isn’t. But I have my doubts about it. It’s true that a general power to issue any commands of any kind would be “improper.” On the other hand, I’m not sure that the power to issue commands is always precluded unless explicitly stated or unmistakably implied. Much depends on the wording of the particular Clause in question. In the case of the power to regulate interstate commerce, the power to issue commands is, I think, barred, because “commerce” implies that Congress many only use it to regulate some kind of preexisting interstate economic activity. But not all grants of power work that way. For example, Congress’ power to raise and support armies is a power to create an army where none existed previously, and therefore implies a power to issue commands. The same goes for Congress’ power to coin money, for example, which implies a power to create money where none previously existed. But it may be that all such cases fall within Michael’s category of situations where a power to issue commands is created by “unmistakable inference.” If so, the difference between our two positions may be relatively small.