Ohio Northern University Law Review. Articles

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1 Ohio Northern University Law Review Articles Originalism and the Necessary and Proper Clause JOHN T. VALAURI * ABSTRACT This article analyzes a largely unacknowledged and, therefore, unsolved problem in constitutional theory and doctrine the problem of multiplicity of meanings (i.e., encountering multiple conflicting meanings in practice when your doctrine or theory postulates just one). It does this by examining and comparing the debate over the meaning of the Necessary and Proper Clause in constitutional doctrine and the New Originalism s notion of original public meaning in constitutional theory in order to help us get beyond the false and misleading assumptions underlying and motivating the myth of unitary meaning. It contrasts the role of the public and the express (as in original public meaning New Originalism) and the implicit and the unsaid (as in the case of incidental power in Necessary and Proper Clause doctrine) with the aim of appreciating the role of each set of factors in doctrine and theory. The theory and practice on offer here, which seeks to navigate, but not to eliminate, multiplicity of meaning, is dialogic originalism. Rather than churning multiple meanings in search of a winner, as is often the case in litigation, argument and theorizing, dialogic originalism puts conflicting meanings in conversation with each other in order to gauge the drift of the conversation and to discover what is at stake for all sides. This approach * Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University. The author wishes to thank and recognize Heather Tackett and Nathan Becht for their valuable research assistance. 773

2 774 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 does not pick winners by a process of elimination, but instead seeks larger elements and concerns shared by all. I. INTRODUCTION: DIALOGIC ORIGINALISM Constitutional doctrine and constitutional theory have a close conceptual relationship, yet they are rarely combined in the same discussion. 1 This article bucks that academic habit by bringing together constitutional doctrine relating to the Necessary and Proper Clause 2 and the constitutional theory of originalism in order to explore the questions and issues they prompt and illuminate in tandem. Exploring complementary issues arising in both areas improves our constitutional insight and understanding of each, and clarifies constitutional meaning by exposing suggested meanings to both doctrinal and originalist constraints. Although they differ in many ways, constitutional doctrine and originalist theory are alike in making the same false assumption that constitutional terms and provisions have unitary, clear meanings. The truth is quite different; if one searches without preconceptions, one instead finds conflicting and contested constitutional meanings almost everywhere in constitutional text, cases, and theory. Faced with this unpalatable truth, both doctrine and theory typically fall back on a reflexive choice of a favored one of the contested meanings or the substitution of an artificial construct (as we shall see in this article). 3 Neither move is a satisfactory solution to the problem of constitutional meaning, but is rather an evasion of the problem, so the conflicts persist. 4 This article tries out an alternative approach putting the conflicting meanings in dialogue with each other, as they were in the founding era and since, so that this conversation itself might lead us to a resolution. 5 The breadth of federal power is the oldest and most fundamental question in American constitutional law, and the scope of Congress s implied or incidental power under the Necessary and Proper Clause is the 1. When the two are brought together, it is usually to argue that a particular constitutional theory demonstrates the cogency of a particular constitutional doctrine. See, e.g., Jack M. Balkin, Commerce, 109 MICH. L. REV. 1 (20121) (equating commerce with intercourse or interaction). But see, e.g., Randy E. Barnett, Jack Balkin s Interaction Theory of Commerce, 2012 U. ILL. L. REV. 623 (2012). Significantly, these two articles, although they both set out to determine the original public meaning of the word commerce in the Commerce Clause, reach diametrically opposed conclusions as to what this meaning is. 2. U.S. CONST. art. I, 8, cl. 18 ( Congress shall have Power... To make all Laws which shall be 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. ). 3. See infra Parts III, IV. 4. See infra Part V. 5. See infra Parts V, VI.

3 2013] THE NECESSARY AND PROPER CLAUSE 775 most contentious and significant topic within that area. 6 Despite the importance of this topic, the meaning of the clause is rarely the sole issue in a case. Rather, it is more often dealt with in conjunction with other constitutional provisions (particularly the Commerce Clause). 7 Conceptually, this is a consequence of its status as an implied or incidental power. 8 Yet, even powers of this sort are in need of clear exposition. 9 However, in the past several years, the Supreme Court has decided two cases in which the clause played a prominent role. In 2010, the Supreme Court decided United States v. Comstock 10 in which it announced a broad, rational basis theory of the clause. 11 Two years later, in National Federation of Independent Business v. Sebelius (hereinafter NFIB), 12 five Justices (including four Justices who joined or concurred with the Court s Comstock opinion), presented a narrower view of the clause as an implied or incidental constitutional power. 13 As a result of these two cases, the Necessary and Proper Clause doctrine was further confused, rather than further clarified. 14 Neither these five Justices nor the Court are of one mind concerning the meaning of the clause. 15 Originalism is the constitutional theory which holds that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted its provisions. 16 Originalists differ over exactly where this understanding lies. Some find it in the original public meaning of the words in the text of the Constitution, while others find it in the framers intentions (to name only two of the most common 6. See infra Parts IV, V. 7. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 330 (1819). The question is not, whether a bank be necessary or useful, but whether, having so judged and decided, and having adopted measures to carry its decision into effect, the state governments may interfere with that decision, and defeat the operation of its measures. Nothing can be plainer than that, if the law of congress establishing the bank, be a constitutional act, it must have its full and complete effects. Id; United States v. Lopez, 514 U.S. 549, (1995) ( But even these modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. ). 8. See infra notes and accompanying text. 9. See infra notes and accompanying text U.S. 126, 130 S. Ct (2010). 11. See id. at , S. Ct (2012). 13. See id. at See infra Parts II, III. 15. See infra Parts II, III. 16. Cass R. Sunstein, Originalism for Liberals, NEW REPUBLIC, Sept. 28, 1998 (book review),

4 776 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 formulations of the theory). 17 Despite their other differences, most originalists assume (without much argument) that there is a correct and discoverable unitary constitutional meaning that is, after all, the main point in holding a theory like originalism. They disagree, however, about just what that meaning is and how it is to be determined. Some originalists also assume that this constitutional meaning is semantic, residing in the meaning of individual words or phrases, 18 rather than in larger groups of words (such as clauses, sentences, articles, etc.) or in broader structural, theoretical, or purpose-related factors. No winners emerge from these conflicts and disagreements. This article suggests dialogue, rather than conflict, as a means of resolving the contest. 19 An originalist looking at Comstock finds a case that does not seek after or rely on the original understanding of the Necessary and Proper Clause, a case that does not, in the main, even deal with the text of the clause. 20 Instead, the Comstock Court begins with, and treats as foundational, McCulloch v. Maryland, one of its early decisions in the area. 21 From McCulloch, the Court selectively proceeds through subsequent precedent and doctrine to arrive at the formula on which it bases its holding. 22 Despite this method (or perhaps because of it), the Justices in Comstock do not coalesce around a single meaning for the clause and the words in it. 23 Instead, they disagree about the scope of the power recognized by the clause. 24 Finally, the Court evaluates the federal statute challenged in the 17. For a good survey of the development of contemporary originalist theory, see Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in THE CHALLENGE OF ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION 12 (Grant Huscroft & Bradley W. Miller eds., 2011). 18. For the leading and longest exposition of semantic originalism, see generally Lawrence B. Solum, Semanatic Originalism (IL Pub. L. Research Paper No , Nov. 22, 2008), available at See infra Part V. 20. See infra Part II. 21. See Comstock, 130 S. Ct. at 1956 ( Nearly 200 years ago, this Court stated that the Federal [G]overnment is acknowledged by all to be one of enumerated powers, which means that [e]very law enacted by Congress must be based on one or more of those powers. ) (quoting McCulloch, 17 U.S. (4 Wheat.) at 405; quoting United States v. Morrison, 529 U.S. 598, 607 (2000)). 22. See id. at ( We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. ) (citing Sabri v. United States, 541 U.S. 600, 605 (2004) ( using term means-end rationality to describe the necessary relationship )); Gonzales v. Raich, 541 U.S. 1, 22 (2005) ( holding that because Congress had a rational basis for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional authority to make all Laws which shall be necessary and proper to regulate Commerce... among the several States[.] ). Comstock, 130 S. Ct. at See infra Part II. 24. The Justices do agree, however, that it does not give Congress a general police power. See Comstock, 130 S. Ct. at 1964 (quoting Morrison, 529 U.S. at 618) ( Nor need we fear that our holding today confers on Congress a general police power, which the Founders denied the National Government

5 2013] THE NECESSARY AND PROPER CLAUSE 777 case in light of five general structural or historical factors not explicitly drawn from or apparently related to the original meaning of the clause. 25 In contrast, an originalist looking at NFIB will see some familiar phrases and doctrine relating to the original meaning of the clause, 26 but will find no direct mention of the original meaning or originalism. Although this connection is only suggested, rather than spelled out, it has been clear enough for dissenters and academic critics of originalism to both take notice and contest. 27 Bringing historical and doctrinal considerations concerning the Necessary and Proper Clause together will provide additional dimensions along which to reconcile these several meaning candidates, thus helping us to determine the candidate most consistent with original public meaning, important precedent, and current constitutional doctrine. 28 All the original public meanings (those held by both federalists and anti-federalists), all subsequent doctrinal positions (those held by both Courts and dissenters), and a variety of semantic, structural, interpretive, textual, and intratextual factors will then play significant, interrelated roles in determining constitutional meaning, not in a mechanical or rule-based manner, but rather in a more holistic way. 29 and reposed in the States. ); Id. at 1967 (Kennedy, J., concurring) ( Residual power, sometimes referred to (perhaps imperfectly) as the police power, belongs to the States and the States alone. ); Id. at 1970 (Alito, J., concurring) ( The Necessary and Proper Clause does not give Congress carte blanche. Although the term necessary does not mean absolutely necessary or indispensable, the term requires an appropriate link between a power conferred by the Constitution and the law enacted by Congress. (citing McCulloch, 17 U.S. (4 Wheat.) at 405)); Id. at 1983 (Thomas, J., dissenting) ( Regrettably, today s opinion breathes new life into that Clause, and the Court s protestations notwithstanding,... comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that we have always rejected. (quoting Lopez, 514 U.S. at 584 (Thomas, J., concurring))). 25. Comstock, 130 S. Ct. at The Court stated: We take these five considerations together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute s enactment in light of the Government s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute s accommodation of state interests, and (5) the statute s narrow scope. Taken together, these considerations lead us to conclude that the statute is a necessary and proper means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. Id. 26. See, e.g., NFIB, 132 S. Ct. at 2591 (Raich did not involve the exercise of any great substantive and independent power[s] beyond those specifically enumerated. ) (quoting McCulloch, 17 U.S. (4 Wheat.) at 411). 27. See infra Part III. 28. See infra Parts IV, V. 29. See infra Parts IV, V.

6 778 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 II. WHAT COMSTOCK SAYS (AND DOES NOT SAY) The contrast and relation between theory and doctrine is particularly sharp in the pairing of originalism and Necessary and Proper Clause doctrine, because it embodies the contrast between the public and express (in the case of original public meaning originalism) and the implicit and unsaid (in the case of incidental power of the Necessary and Proper Clause). Contemporary originalism often casts constitutional meaning in terms of the original public meaning of the provision(s) in question. 30 This originalism typically finds meaning mainly in roughly contemporaneous dictionaries, documents, and public speeches and proceedings, and other items of this sort. 31 While Comstock is not an originalist opinion on this description, the Court s landmark Second Amendment decision, District of Columbia v. Heller, 32 certainly is. 33 Despite these differences, both opinions are similarly afflicted with basic disagreements over the meaning of the constitutional provisions in question. This is primarily because the meanings of the terms used therein are multiple and contested, 34 regardless of their method of derivation. Neither approach, it seems, guarantees consensus. 35 Let us look, then, at Comstock and briefly compare it to Heller in order to examine how the two opinions derive and argue for (and over) 30. For a discussion of the rise of original public meaning originalism, see Solum, supra note 17, at Justice Scalia refers to all of these as evidence of original public meaning in writing for the Court. See District of Columbia v. Heller, 554 U.S. 570, 581 (2008) ( Before addressing the verbs keep and bear, we interpret their objects: Arms. The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson s dictionary defined arms as weapons of offense, or amour of defense.... The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. ); id. at 582 ( The phrase keep arms was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to keep Arms as an individual right unconnected with militia service. ); see also id. at U.S. 570 (2008). 33. One commentator, for example, says that, Heller has been described, accurately enough, as the most originalist opinion in recent Supreme Court history. Mark Tushnet, Heller and the New Originalism, 69 OHIO ST. L. J. 609, 609 (2008). 34. See Comstock, 130 S. Ct. at 1956 ( First, the Necessary and Proper Clause grants Congress broad authority to enact federal legislation. ); see also id. ( Chief Justice Marshall emphasized that the word necessary does not mean absolutely necessary. ) (quoting McCulloch, 17 U.S. (4 Wheat.) at ); see also Heller, 554 U.S. at 577. The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Id. (citations omitted). 35. See generally NFIB, 132 S. Ct. 2566; Heller, 554 U.S. 570.

7 2013] THE NECESSARY AND PROPER CLAUSE 779 constitutional meaning, and then suggest how conflicts and disagreements might be resolved, or at least lessened. 36 The constitutional discussion in Comstock begins with a statement of the question presented in the case whether the Necessary and Proper Clause... grants Congress authority sufficient to enact the statute before us. 37 After announcing an affirmative answer to this question, the Court continues, We base this conclusion on five considerations, taken together. 38 The first and most important of these five considerations is that the Necessary and Proper Clause grants Congress broad authority to enact federal legislation. 39 However, in his subsequent explanation and justification of this assertion, Justice Breyer neither parses the text of the clause, nor argues the original public meaning of the clause. 40 Instead, he starts his discussion in 1819, rather than 1787, quoting from Chief Justice John Marshall s landmark decision in McCulloch v. Maryland: Nearly 200 years ago, this Court stated that the Federal [G]overnment is acknowledged by all to be one of enumerated powers, 41 and thus, [e]very law enacted by Congress must be based on one or more of those powers. 42 This assertion is, in turn, balanced with the reminder that, at the same time, a government entrusted with such powers must also be entrusted with ample means for their execution. 43 As to the breadth and strength of these powers, Justice Breyer, picking terms from McCulloch, says they must be convenient, or useful or conducive to the authority s beneficial exercise 44 while emphasizing that the word necessary does not mean absolutely necessary See infra notes and accompanying text. 37. Comstock, 130 S. Ct. at 1956 (citation omitted). 38. Id. It is not clear from this statement just how these factors are to be weighed and combined. In his dissent, Justice Thomas asks: Must each of these five considerations exist before the Court sustains future federal legislation as proper exercises of Congress Necessary and Proper Clause authority? What if the facts of a given case support a finding of only four considerations? Or three? And if three or four will suffice, which three or four are imperative? Id. at 1975 (Thomas, J., dissenting) (emphasis in original). These and other related questions are never dealt with, let alone answered, in the course of Justice Breyer s opinion for the Court. 39. Id. at In contrast, writing for the Court in Heller, Justice Scalia parses the text of the Second Amendment and offers his explanation of its original public meaning. See Heller, 554 U.S. at 576 (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)) ( In interpreting this text, we are guided by the principle that [t]he Constitution was written to be understood by the voters; its words and phrase were used in their normal and ordinary as distinguished from technical meaning. ). 41. Comstock, 130 S. Ct. at 1956 (quoting McCulloch, 17 U.S. (4 Wheat.) at 405). 42. Id. (quoting Morrison, 529 U.S. at 607). 43. Id. (quoting McCulloch, 17 U.S. (4 Wheat.) at 408). 44. Id. (quoting McCulloch, 17 U.S. (4 Wheat.) at 413, 418). 45. Id. (quoting McCulloch, 17 U.S. (4 Wheat.) at ).

8 780 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 Quoting Marshall s opinion once again, Justice Breyer summarizes the Necessary and Proper power in this way: In language that has come to define the scope of the Necessary and Proper Clause, he wrote: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. 46 It is true that this language now defines the meaning and scope of the Necessary and Proper Clause, but, unfortunately, this is in large part because it means different things to different people Justice Thomas, for example, quotes the same language in his Comstock dissent, calling it this Court s definitive interpretation of that text. 47 In Justice Breyer s discussion of the scope and basis of the Necessary and Proper power, selected quotations from McCulloch, rather the original public meaning (or even the text of) the Necessary and Proper Clause itself, are used to define the general parameters of Congress s constitutional power. 48 This stands in stark contrast to the originalist cast of Justice Scalia s Second Amendment in Heller. 49 However, the Comstock Court does not stop there; these quotations from McCulloch are not the Court s last word on the meaning and scope of the Necessary and Proper Clause. 50 Instead, the Court goes on to take its current doctrine from more contemporary cases that look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. 51 This rationally related test is then equated with means-ends rationality. 52 What is the relationship for the Comstock Court between the definitive McCulloch language, and the modern rationally related and means-ends rationality tests? The implication, but not the explicit assertion, of the Court s opinion, given the absence of any differentiation or explanation, is that there is no conflict between these three versions of the Necessary and Proper power. 53 The two modern tests merely restate the 46. Comstock, 130 S. Ct. at 1956 (quoting McCulloch, 17 U.S. (4 Wheat.) at 421). 47. Id. at 1971 (Thomas, J., dissenting). 48. See generally id. at See Heller, 554 U.S. at ( Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation. ). 50. See Comstock, 130 S. Ct. at Id. (citing Sabri v. United States, 541 U.S. 600, 605 (2004)). 52. Id. at (citing Sabri, 541 U.S. at 605). 53. See id.

9 2013] THE NECESSARY AND PROPER CLAUSE 781 definitive McCulloch language as a simpler, more easily applied, test. 54 On this view, the two modern tests are just different ways of formulating the same test, rather than different tests altogether. 55 But the problem with this series of definitions, equations, and inferences, is that they are not all true. The McCulloch language is only definitive to the extent contested, and ambiguous language can be definitive; the point of definitions is the production of clarity, not the fostering of confusion and disagreement. 56 More importantly, it is at the very least disputable that the two modern formulations are faithful translations of McCulloch or that they are functionally equivalent tests. 57 The two concurring Comstock Justices (Kennedy and Alito) express, in different ways, concerns about the breadth of the Court s language here. Justice Kennedy, for example, argues against an interpretation of rationally related or rational basis drawn from Due Process cases, 58 preferring more the understanding of these phrases in their Commerce Clause context where a demonstrated link in fact, based on empirical demonstration is required. 59 Likewise, he argues that the use of the phrase means-ends rationality in Sabri v. United States 60 certainly did not import the Lee Optical rational-basis test into this arena. 61 Justice Alito is also concerned with the breadth of the Court s language 62 and would require an appropriate link between a power conferred by the Constitution and the law enacted by Congress. 63 He does not, however, further specify how one determines whether or not a link is appropriate. 64 Similarly, in his dissent, Justice Thomas sets out a two part Necessary and Proper Clause test, presenting it as a translation of McCulloch: First, the law must be directed toward a legitimate end... [s]econd, there must be a necessary and proper fit between the means (the federal law) and the end (the enumerated power or powers) it is designed to serve See id. 55. See Comstock, 130 S. Ct. at See id. 57. See id. 58. Id. at 1966 (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, (1955) (Kennedy, J., concurring)) ( But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. ). 59. Id. at U.S. 600 (2004). 61. Comstock, 130 S. Ct. at 1957 (citing Sabri, 541 U.S. at 612). 62. Id. at 1969 (Alito, J., concurring). 63. Id. at 1970 (Alito, J., concurring). 64 See id. 65. Id. at 1971 (Thomas, J., dissenting).

10 782 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 Now, if one takes the word appropriate to mean the same as the phrase necessary and proper, as is suggested by the use of the word appropriate in the enforcement provisions of the Reconstruction amendments, 66 the Comstock concurrences and dissent display the same lack of precision and clarity about the scope of the Necessary and Proper Clause. 67 There is an assertion (albeit negative) on which they all agree, though. 68 As Justice Breyer wrote for the Court, [n]or need we fear that our holding today confers a general police power, which the Founders denied the National Government and reposed in the States. 69 Agreeing with Justice Breyer, Justice Kennedy asserts that, [t]he inferences must be controlled by some limitations lest, as Thomas Jefferson warned, congressional powers become completely unbounded by linking one power to another ad infinitum in a veritable game of this is the house that Jack built. 70 Justice Alito insists that, The Necessary and Proper Clause does not give Congress carte blanche. 71 Finally, Justice Thomas notes that, Anti-Federalists expressed concern that the Necessary and Proper Clause would give Congress virtually unlimited power. 72 Despite this general agreement by the Court that the Necessary and Proper Clause does not confer unlimited legislative power upon Congress, there is little discussion, let alone agreement, about what the limit on that power might be. 73 The simplest possible limit test is proffered by Justice Thomas: The Necessary and Proper Clause empowers Congress to enact only those laws that carr[y] into Execution one or more of the federal powers enumerated in the Constitution. Art. I, 8, cl. 18. Because 4248 Execut[es] no enumerated power, I most respectfully dissent. 74 This formula is accepted by no other Justice and is specifically refuted by Justice Kennedy, who answers, When the inquiry is whether a federal law has sufficient links to an enumerated power to be within the scope of federal 66. U.S. CONST. amend. XIII, 2 ( Congress shall have power to enforce this article by appropriate legislation. ); U.S. CONST. amend. XIV, 5 ( The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. ); U.S. CONST. amend. XV, 2 ( The Congress shall have the power to enforce this article by appropriate legislation.). 67. See Comstock, 130 S. Ct. at 1970 (Alito, J., concurring); id. at (Thomas, J., dissenting). 68. See id (quoting Morrison, 529 U.S. at 618). 69. Id. 70. Id. at 1966 (Kennedy, J., concurring) (quoting Letter from Thomas Jefferson to Edward Livingston (Apr. 30, 1800) in 35 PAPERS OF THOMAS JEFFERSON 547 (Barbara B. Oberg ed., 2004)). The House that Jack Built is a British nursery rhyme, a cumulative tale that does little more than tell how Jack s house is indirectly related to numerous other things and events. 71. Id. at 1970 (Alito, J., concurring). 72. Comstock, 130 S. Ct. at 1972 (Thomas, J., dissenting). 73. See id. at Id.at 1970 (Thomas, J., dissenting) (citation omitted). It is clear from both his vote and his rhetoric that Justice Thomas shares this concern.

11 2013] THE NECESSARY AND PROPER CLAUSE 783 authority, the analysis depends not on the number of links in the congressional-power chain but on the strength of the chain. 75 But neither Justice Kennedy, nor the other Justices, provide a clear alternative formulation to Thomas s suggested limit on the scope of the Necessary and Proper Clause. 76 Although the breadth of Congressional power under the Necessary and Proper Clause is the main item of concern for both the Court, the two concurring Justices, and the one dissenting Justice in Comstock, there is little statement, let alone agreement, as to what the limits of this power are. 77 The discussion of the remaining four parts of the Court s five part test 78 is briefer and less contested. The second factor, the long history of federal involvement in this area is clearly met. 79 The third factor, the sound reasons for the statute s enactment, taken by the Court in the sense of policy reasons rather than constitutional reasons, is also clearly met. 80 While the second and third factors, on their face, call for factual, rather than legal or constitutional determinations, the constitutional question confronting us here is whether these factors are justified, not merely whether they are factually met in this case. 81 In a different way, the fourth and fifth factors, the statute s accommodation of state interests and its narrow scope, also call for constitutional, as well as factual, determinations. 82 Whether or not state interests are properly accommodated depends on what the state s legitimate interests are. 83 This, in turn, raises contested questions of federalism, and the Tenth Amendment (the interrelation of the Necessary and Proper Clause, federalism, and the Tenth Amendment will be a recurring issue in this article). 84 Finally, the fifth factor raises the issue of the attenuation of the links between the statute and the enumerated power, the determination of which is dependent upon the first factor of the five part test, the breadth of the Necessary and Proper Clause Id. at 1966 (Kennedy, J., concurring). 76. See id. at 1966 (Kennedy, J., concurring). 77. See Comstock, 130 S. Ct. at 1970 (Thomas, J., dissenting); Id. at 1966 (Kennedy, J., concurring). 78. See id. at However, the Court concedes that even a longstanding history of related federal action does not demonstrate a statute s constitutionality. Id. at See id. at See id. at See Comstock, 130 S. Ct. at Id. 84. The Court tells us that, Respondents and the dissent contend that 4248 violates the Tenth Amendment because it invades the province of state sovereignty in an area typically left to state control. Id. at 1962 (quoting New York v. United States, 505 U.S. 144, 155 (1992)). 85. See id. at

12 784 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 There is no discussion by any of the Comstock Justices of propriety as a separate and independent requirement over and above necessity in the meaning of the clause. 86 The phrase necessary and proper can be construed as having a single unitary meaning and as setting a single standard for the constitutionality of federal legislation, thus staying true to the saying that lawyers will never use one word when two will do. It can also be seen as containing two operative terms and imposing two different requirements on legislation. This may be due in part to the fact that no specific propriety claim is raised in the case (in contrast, for example, to attacks on the individual mandate contained in the Patient Protection and Affordable Care Act 87 ). Alternatively, this may be due to an unstated belief among the Justices that there is no separate propriety requirement in the clause. 88 Thus, the Comstock decision raises issues both through what the Court did and did not say. 89 III. NFIB ON NECESSARY AND PROPER And now, for something completely different! The Court s take on the Necessary and Proper Clause in NFIB bears little resemblance to their Comstock opinion. 90 In NFIB, five Justices (Chief Justice Roberts 91 and four joint dissenters 92 ) proffer a narrower view of the scope and meaning of the clause, a view with echoes of the original understanding of the clause. Justices Alito, Kennedy, and Thomas do express reservations about the breadth of the Court s rational relationship test in their Comstock opinions, but in Comstock they say little more than that there must be a real and appropriate means-ends link between constitutional power and congressionally-enacted statute. 93 Only in the opinion of Justice Ginsburg, 94 writing for herself and Justices Breyer, Kagan and Sotomayor on this issue in NFIB, can one see positive mention of the rational relationship test 86. See generally id. 87. See Florida v. United States Dept. of Health & Human Servs., 648 F.3d 1235, 1350 (2011) (quoting McCulloch, 17 U.S. (4 Wheat.) at 421) ( The plaintiffs also claim that the individual mandate exceeds Congress power because it is not proper that is, because it is inconsistent with the letter and spirit of the constitution. ); see also Ilya Somin, Taking Stock of Comstock: The Necessary and Proper Clause and the Limits of Federal Power, 2010 CATO SUP. CT. REV. 239, 264 (2010) ( The individual mandate can certainly be attacked as potentially improper, and the state plaintiffs may well raise this point as the litigation proceeds. ). 88. See generally Comstock, 130 S. Ct See supra notes and accompanying text. 90. Compare Comstock, 130 S. Ct. at (upholding a broad rational relationship test), with NFIB, 132 S. Ct (advocating a narrower interpretation of the Necessary and Proper Clause). 91. NFIB, 132 S. Ct. at Id. at 2642 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 93. See supra notes and accompanying text. 94. NFIB, 132 S. Ct. at 2609 (Ginsburg, J., concurring in part and dissenting in part).

13 2013] THE NECESSARY AND PROPER CLAUSE 785 approved for the clause in Comstock. 95 There is no mention of the five additional Necessary and Proper considerations set out by Justice Breyer in Comstock 96 in any of the NFIB opinions (Justice Breyer does not write separately in NFIB). 97 Perhaps because eight Justices (all except Justice Thomas) agree on the result in Comstock, doctrinal and theoretical differences are relatively muted. 98 On the other hand, because they strongly disagree on the result in NFIB, their differences are sharper. 99 To those differences, we now turn. Five Justices in NFIB find the Individual Responsibility Requirement 100 (commonly called the individual mandate ) of the Patient Protection and Affordable Care Act 101 to lie beyond Congress commerce power. 102 There is no opinion of the Court on this issue, as the four joint dissenters (Justices Scalia, Kennedy, Thomas, and Alito), pointedly do not join in Chief Justice Robert s judgment of the Court. Yet in two opinions, these five Justices set forth much the same doctrines of the Commerce and Necessary and Proper Clauses. 103 Our focus here is the latter clause. A dash of originalist methodology is present in the discussion of the Commerce Clause in the NFIB opinions; the four joint dissenters and Justice Ginsburg trade opposing definitions of the word regulate from founding era dictionaries. 104 However, the Justices treatment of the Necessary and Proper Clause itself in NFIB originates from Chief Justice John Marshall s landmark opinion in McCulloch v. Maryland, 105 which was decided a generation after the ratification of the Constitution, rather than with the original public meaning of the words of the clause themselves. 106 This is also the manner in which the Court proceeds in its Comstock decision See id. at 2616 (Ginsburg, J., concurring in part and dissenting in part) (quoting Hodel v. Indiana, 452 U.S. 314, (1982)) ( When appraising such legislation, we ask only (1) whether Congress had a rational basis for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a reasonable connection between the regulatory means selected and the asserted ends. ). 96. See Comstock, 130 S. Ct. at See generally NFIB, 132 S. Ct See generally Comstock, 130 S. Ct See infra notes and accompanying text U.S.C.A. 5000A (2010) Pub. L. No , 24 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act, Pub. L. No , 124 Stat (2010) (codified as amended at 42 U.S.C.A (2010)) By commerce power I mean the legislative power afforded Congress by the combination of the Commerce Clause and the Necessary and Proper Clause See NFIB, 132 S. Ct. at ; id. at (Ginsburg, J., concurring) See id. at 2644 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting); see also id. at 2621 (Ginsburg, J., concurring in part and dissenting in part) U.S. (4 Wheat.) See NFIB, 132 S. Ct. at See Comstock, 130 S. Ct. at 1956.

14 786 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 At the beginning of the constitutional analysis in his NFIB opinion, Chief Justice Roberts introduces the subject by saying, In our federal system, the National Government possesses only limited powers, the States and the people retain the remainder. 108 To this he adds, Nearly two centuries ago, Chief Justice Marshall observed that the question respecting the extent of the powers actually granted to the Federal government is perpetually arising, and will probably continue to arise, as long as our system shall exist. 109 The devil is always in the details. Here the devil lies in specifying precisely what the limits to federal powers are. Marshall s perpetually arising prediction has now been accurate for almost two centuries and there is little indication that the situation will soon change to its detriment. 110 Yet, in each succeeding case in which the issue arises, another decision on the limits to federal power must be made, along with some attempt to reconcile that decision with precedent and established doctrine. Two pages farther along in his opinion in NFIB, the Chief Justice again invokes John Marshall, quoting Marshall s iconic description of the nature and scope of congressional power under the Necessary and Proper Clause, 111 the same words quoted by both sides in Comstock. 112 Both sides in the debate over the meaning and scope of the clause may invoke the same constitutional formula from John Marshall, but from this formula they reach quite different readings of the scope of that power. 113 The difference between the two views here is not so much in Marshall s words, although they are demonstrably capable of more than one reading, but lie, instead, in other beliefs and assumptions which color understandings of the clause. Resolution of this disagreement, then, will involve analyzing and evaluating these underlying beliefs and assumptions. Let us look first at Chief Justice Roberts s presentation and resolution of the Necessary and Proper Clause issue in NFIB. 114 He recognizes the Court s past deference to congressional judgment in applications of the 108. NFIB, 132 S. Ct. at Id See id Id. at We have long read this provision to give Congress great latitude in exercising its powers: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. Id. (quoting McCulloch, 17 U.S. (4 Wheat.) at 421) See Comstock, 130 S. Ct. at 1956; id. at 1971 (Thomas, J., dissenting) See id. at ; id. at 1971 (Thomas, J., dissenting) See NFIB, 132 S. Ct. at

15 2013] THE NECESSARY AND PROPER CLAUSE 787 Necessary and Proper Clause, 115 but nevertheless insists that, Our deference in matters of policy cannot, however, become abdication in matters of law. The powers of the legislature are defined and limited, and that those limits may not be mistaken, or forgotten, the constitution is written. 116 For this reason he concludes that, The questions before us must be considered against the background of these basic principles. 117 Against this background, the Chief Justice finds fault with the individual mandate as not being a proper law under the clause because it undermines the constitutional structure of government and is contrary to the letter and spirit of the Constitution. 118 However, the structure and spirit which the Chief Justice finds to have been violated here does not appear in so many words in the constitutional text itself; it arises, instead, from the notion of implied or incidental powers, i.e., from extratextual agency law concepts and fiduciary principles of the founding era 119 as set forth, most notably, in Chief Justice Marshall s McCulloch opinion. 120 The Chief Justice describes the necessary and proper power as the power to enact incidental legislation. 121 To explain the nature of incidental powers, he once again turns to Marshall s McCulloch opinion to contrast incidental powers with great substantive and independent power[s]. 122 The Necessary and Proper Clause, according to Chief Justice Roberts, conveys no additional independent powers beyond those enumerated in the Constitution; it merely declares Congress possession of incidental powers pursuant to those 115. See id. at ( As our jurisprudence under the Necessary and Proper Clause has developed, we have been very deferential to Congress s determination that a regulation is necessary. We have thus upheld laws that are convenient, or useful or conducive to the authority s beneficial exercise. ) (quoting Comstock, 130 S. Ct. at 1965) See id.at 2579 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)) Id. at See id. at 2592 ( But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of the government established by the Constitution. Such laws, which are not consist[ent] with the letter and spirit of the constitution are not proper [means] for carrying into Execution Congress s enumerated powers. ) (quoting McCulloch, 17 U.S. (4 Wheat.) at 421) (emphasis in original) For a brief description of these notions and principles, see infra notes and accompanying text See McCulloch, 17 U.S. (4 Wheat.) at , See NFIB, 132 S. Ct. at 2591 ( The power to make all Laws which shall be necessary and proper for carrying into Execution the powers enumerated in the Constitution, Art. I 8, cl. 18, vests Congress with the authority to enact provisions incidental to the [enumerated] power, and conducive to its beneficial exercise. (quoting McCulloch, 17 U.S. (4 Wheat.) at 418) Id. ( Although the Clause gives Congress authority to legislate on that vast mass of incidental powers which must be involved in the constitution, it does not license the exercise of any great substantive and independent power[s] beyond those specifically enumerated. ) (quoting McCulloch, 17 U.S. (4 Wheat.) at 411, 421).

16 788 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 enumerated powers. 123 From this, he concludes that, Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause [.] 124 He adds that, This is in no way an authority that is narrow in scope... or incidental to the exercise of the commerce power. 125 The four joint dissenters, in their discussion of the Necessary and Proper Clause, emphasize the constitutional background principle of limited governmental powers. 126 They tie this to Chief Justice Marshall s admonition in McCulloch. 127 These background principles constitute, at least in part, the spirit of the Constitution for the four joint dissenters. 128 Under this view, these principles operate to restrain what might otherwise be unlimited congressional regulatory power. 129 At the oral argument of the case, they played a game of constitutional Gotcha with the government by asking what congressional control of private action (not including a violation of an express constitutional provision) would not be necessary and proper under the government s theory of the clause, correctly assuming that no examples would be offered. 130 The four dissenters accuse the liberal Justices in this case of postulating a nonexistent whatever-it-takes-tosolve-a-national-problem power See id. ( Instead, the Clause is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant. (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247 (1960)) Id. at Id. (quoting Comstock, 130 S. Ct. at 1964; McCulloch, 17 U.S. (4 Wheat.) at 418) See NFIB, 132 S. Ct. at (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) Id. ( The mandating of economic activity... converts the Commerce Clause into a general authority to direct the economy, that mandating is not consistent[ent] with the letter and spirit of the constitution. ) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (quoting McCulloch, 17 U.S. (4 Wheat.) at 421) See id See id. at The lesson of these cases is that the Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce... [T]he scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power. Id See id. at See NFIB, 132 S. Ct. at The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power.) (emphasis in original

17 2013] THE NECESSARY AND PROPER CLAUSE 789 Justice Ginsburg s reply to Chief Justice Roberts and the four dissenters on the topic of the Necessary and Proper Clause is brief and to the point; whatever it lacks in length and citations, it more than makes up in forcefulness. 132 She begins her constitutional/historical analysis by noting that, The Commerce Clause, it is widely acknowledged, was the Framers response to the central problem that gave rise to the Constitution itself. 133 She then continues, saying that, What was needed was a national Government... armed with a positive & compleat authority in all cases where uniform measures are necessary. 134 This authority, however, could not be expressed in precise detail. The framers, she says, recognized that the Constitution was of necessity a great outlin[e], not a detailed blueprint. 135 For this reason, Justice Ginsburg asserts, the Court has employed a practical conception of Congress commerce power 136 which afford[s] Congress the leeway to undertake to solve national problems directly and realistically. 137 Although Justice Ginsburg does not specifically discuss the background principle of formal commerce power limits advanced by the Chief Justice and the four joint dissenters, it is not difficult to infer her opinion on the topic, if only from the adjectives ( practical ) and adverbs ( directly and realistically ) she uses to describe and qualify that power, and from the absence of any formal limits on the power that she endorses. She inveighs against formal limits, calling them line-drawing exercises. 138 Justice Ginsburg s practical, anti-formal view of the commerce power dovetails with her adherence to a deferential model of court scrutiny of congressional exercise of that power, which employs a rational basis or Id See id. at (Ginsburg, J., concurring in part and dissenting in part) Id. at 2615 (quoting EEOC v. Wyoming, 460 U.S. 226, 244, 245 & n.1 (1983) (Stevens, J., concurring)) (emphasis in original) Id. (quoting Letter from James Madison to Edmund Randolph (Apr. 8, 1787) in 9 PAPERS OF JAMES MADISON 368, 370 (R. Ruland ed., 1975)) Id. (quoting McCulloch, 17 U.S. (4 Wheat.) at 407) See NFIB, 132 S. Ct. at 2616 (Ginsburg, J., concurring in part and dissenting in part) ( Consistent with the Framers intent, we have repeatedly emphasized that Congress authority under the Commerce Clause is dependent upon practical considerations, including actual experience. ) (quoting National Labor Relations Brd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, (1937)) Id. (quoting American Power & Light Co. v. SEC, 329 U.S. 90, 103 (1946)) See id. at These line-drawing exercises were untenable, and the Court long ago abandoned them. [Q]uestions of the power of Congress [under the Commerce Clause], we held in Wickard, are not to be decided by reference to any formula which would give controlling force to nomenclature such as production and indirect and foreclose consideration of the actual effects of the activity in question upon interstate commerce. Id. (quoting Wickard v. Filburn, 387 U.S. 111, 120 (1942)).