Part One: The Necessary and Proper Clause and Implied Powers
As
we see in McCulloch v. Maryland, the
Court’s decision to uphold the constitutionality of the second national bank
act rests on its conclusion that the national government has “implied powers”
in addition to the enumerated powers explicitly stated in the Constitution.
Justice Story had already discussed and affirmed the existence of implied
powers in his earlier opinion in Martin
v. Hunter’s Lessee, where he referred to constitutional powers that exist
by “necessary implication.”
Marshall’s
justification of such powers is more complete. He focuses on the Necessary and
Proper Clause of Section 8 of Article I of the Constitution, the section that
enumerates the specific legislative powers of Congress. The first seventeen
clauses of Section 8 list many particular objects of possible legislation,
including several that refer to national finance and economics, but do not
mention a bank, national or otherwise. The eighteenth clause provides Congress
with the 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.
But
what do “necessary and proper” mean? How shall those terms be interpreted? If
the term “necessary” is narrowly construed to mean “indispensable” and “most
direct and simple,” then, argues Marshall, the power of Congress will be
severely limited. (See page 413 of the opinion.) Rather, he argues that the
term “necessary” should be taken in its general understanding as any reasonably
effective means to do a job:
To
employ the means necessary to an end, is generally understood as employing any
means calculated to produce the end, and not as being confined to those single
means, without which the end would be entirely unattainable.
Since
creation of a national bank is a reasonably effective way of accomplishing one
or more of the enumerated legislative goals listed in the Constitution,
Marshall concludes that the national bank law is constitutional. He sums up the
general rule or test for determining whether a law is justified by the doctrine
of implied powers in a famous formula that you may have heard before:
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. (Page 421)
Thus,
if the end or goal or object of the legislation is enumerated in the
constitution, and if the means chosen to accomplish that goal are reasonably
calculated to achieve that end and are not prohibited by other provisions of
the Constitutions, then the legislation is constitutional.
This
liberal construction of the Necessary and Proper Clause provides tremendous
authority for the federal government. When coupled with the Court’s repeated
policy of not questioning too closely the reasoning or calculation of Congress
in choosing its means, the clause provides Congress with great latitude in its
choice of legislative means.
* * *
The
text of the Necessary and Proper Clause does not refer only to the enumerated
powers of Congress in Article I. Article I, Section 8,
Clause 18 also authorizes Congress to make laws to implement “all other Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.” Even beyond the legislative powers of Congress,
the reasoning of the implied powers doctrine—not the Necessary and Proper
Clause itself—has been used to constitutionally justify actions by each of the
three branches of the national government to do things that are not spelled out
in either federal laws or the Constitution—the so-called incidental or
auxiliary powers. Cases such as McGrain v. Daugherty
(1927; congressional power to subpoena witnesses), In re Neagle (1890; presidential power,
executed by the Attorney General, to assign a federal marshal to protect a
Supreme Court justice), and Young v.
United States ex rel Vuitton et
Fils (1987; judicial power to punish contempt of
court) all followed the implied powers reasoning. The goal or object of the
government action was to enable the particular branch of the government to
fulfill the constitutional function; the action or means taken was a reasonable
way of fulfilling that function; and the action taken did not violate some
constitutional prohibition, such as an individual liberty protected by the Bill
of Rights. The implied power reasoning has even been used by the Court to test
actions taken by the states in pursuit of their police powers under the Tenth
Amendment. (See Jacobson
v. Massachusetts, 1905; upholding state mandatory vaccination laws.)
One
special case we must look at in this regard is the legislation that Congress
enacts to implement the Amendments to the Constitution. A number of the
Amendments to the Constitution have what is called an enforcement clause
(Amendments 13, 14, 15, 18, 19, 23, 24, 26). The first
one, attached to the Thirteenth Amendment (1865) is typical:
Section
2. Congress shall have power
to enforce this article by appropriate legislation.
This
language is almost identical to the languagd in the
enforcement clauses of the Fourteenth Amendment (Sec. 5) and the Fifteenth
Amendment (Sec. 2). How should the Court construe this enforcement power? What
are the limits of congressional power under this and similar provisions in
constitutional amendments? Its opinion in the 1966 case of South Carolina v. Katzenbach set forth
the rule. Congress had enacted the Voting Rights Act of 1965 pursuant to its
authority to enforce the Fifteenth Amendment’s prohibition of state laws or
actions denying citizens the right to vote on the basis “of race, color, or
previous condition of servitude.” The enforcement clause of the Fifteenth
Amendment is practically identical to the clause quoted above in the
Thirteenth. What does it mean?
Finally,
the Court in recent years has announced limits to the power of Congress under
both the enforcement clauses of the amendments and under the Necessary and
Proper Clause itself. The City of Boerne
case reflects the first of these limits; the National Federation of Independent Business, or the Obamacare case,
reflects the latter. What limits did each of these cases place on the implied
powers of Congress? What new rules did the Court rely upon for its decisions?