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03/28/2012

Oral Argument: Necessary AND Proper
Michael Ramsey

While trying to avoid overloading on analysis of the health care arguments, in light of a previous comment about the "necessary and proper" clause I thought it worth noting Ilya Somin's highlight of this part of Tuesday's oral argument:

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that
exists.

GENERAL VERRILLI: But it -­

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

In general, the focus of a number of Justices on a principle to limit federal power seems a good sign for the original constitutional design, regardless of the outcome of the particular case; at least, it reaffirms that there must be some such principle.

Additional comments at Volokh Conspiracy from Orin Kerr and David Bernstein.

And a New York Times profile of celebrity originalist Randy Barnett.