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02/01/2021

The Necessary and Proper Clause, McCulloch, and Deference to Congress
Mike Rappaport

I just taught McCulloch v. Maryland to my Constitutional Law class.  One of the key questions is how strict the Necessary and Proper Clause is.  In McCulloch, this was discussed as to whether “necessary” meant “absolutely necessary” or merely “appropriate” or “plainly adapted to.”

Chief Justice Marshall made several arguments in response.  One of them involved a comparison of different clauses (sometimes referred to as intertextualism).  In Article I, section 10, the Constitution used the term “absolutely necessary.”  It provides: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws.”  Since the Necessary and Proper Clause did not use “absolutely necessary,” Marshall argued that this suggested that a less strict understanding necessary was intended. 

Fair enough.  This is certainly a good originalist argument, although it is an argument that could be outweighed by other considerations.

But this type of argument also has implications for other aspects of McCulloch – implications that are rarely mentioned.  One interpretation of McCulloch – one that I think is mistaken – is that the Necessary and Proper Clause largely assigns the question whether a means is necessary to the Congress (sort of like a limited political question).  It is not for the judiciary to make this decision. 

But if that is what McCulloch says (and, as I say, I doubt it), it is open to a strong counterargument of the sort Marshall made above as to the meaning of necessary.  When the Constitution assigns to a decisionmaker the final decision as to whether its action is necessary (as the mistaken interpretation of McCulloch claims), the Constitution says so.   For example, Article II, section 3 provides: The President “shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”  In other words, if the Constitution were to assign to Congress the final decision as to the necessity of its actions under the Necessary and Proper Clause, it would have said something like: “To make all Laws which the Congress shall judge to be necessary and proper for carrying into Execution the foregoing Powers.”  That is not how the Clause reads and therefore the actual language of the Clause cuts against deferring significantly to Congress's determination whether the means employed is necessary.