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Robert Reinstein: The Limits of Congressional Power
Michael Ramsey

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted The Limits of Congressional Power (Temple Law Review, Vol. 89, No. 1, 2016) on SSRN.  Here is the abstract:  

This article explores the outer limits of congressional power. The debate over those limits began in 1791 when James Madison challenged the constitutionality of Alexander Hamilton’s Bank of the United States in the First Congress and has continued through the present. According to Madison, the Necessary and Proper Clause was constrained by three doctrines: implied powers must be “direct and incidental” to express powers; they could not be used to invert constitutional ends and means; and powers of exceptional importance could not be derived from implication. Although Madison’s challenges to the Bank failed in the First Congress and in McCulloch v. Maryland, his limiting doctrines have recently been resurrected in an impressive body of scholarship and adopted by several Supreme Court Justices. In addition, eminent scholars have meticulously analyzed McCulloch and argue that this foundational opinion, conventionally regarded as affording great discretion to Congress in the use of implied powers, is actually a moderate and defensive validation of federal power.

This article is in three parts. The first part examines the Bank debate and other legislation enacted by the First Congress. This historical review demonstrates a mainstream Federalist constitutional philosophy that broadly construed and applied the express and implied powers of Congress. That philosophy was synthesized in Hamilton’s influential opinion on the constitutionality of the Bank and became the blueprint for McCulloch. This material contains arguments that greatly influenced the Marshall Court but tend to be overlooked in modern scholarship.

The second part of this article presents an extensive analysis of McCulloch. The early portions of the opinion are connected to the pressing constitutional issues of the time. The opinion’s determinations of the breadth of Congress’s implied powers and the constitutionality of the Bank, when related back to the Federalist blueprint, establishes McCulloch as an aggressive, albeit not unlimited, endorsement of national power. The Bank was upheld not only as a means of carrying out specific enumerated powers but also as Congress’s agent in implementing an aggregated national fiscal power. This part of the article also shows how each of Madison’ limiting principles was rejected and explains why the degree of necessity is a political question, what Marshall meant by the “spirit” of the Constitution, why legislative and judicial approaches to the relationship of means and ends can be contradictory, whether McCulloch requires the application of the rational basis test, and what the limits of congressional power are. 

Part three of the article returns to Madison’s theory that the implied powers of Congress are limited by the degree of their importance. This part reflects Edmund Randolph’s forgotten warning against overreliance on intratextualism as a method of constitutional construction. It then shows that the intratextualist methodology used by Madison and modern scholars does not accurately account for the enumeration of legislative powers in Article I. This part concludes by offering an alternative theory for the construction of Article I that explains why seemingly incidental powers are included among the express powers, how the enumerations serve the separation of powers, how certain express powers are actually limitations on powers that could be derived through implication (including, potentially, the Necessary and Proper Clause), and how the constitutionality of the implied powers of Congress is not inversely proportional to their importance.