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09/12/2021

Gerard Magliocca on Chief Justice Marshall on the Necessary and Proper Clause
Michael Ramsey

At Balkinization, Gerard Maggliocca (Indiana): An Alternative Test for the Necessary and Proper Clause.  Professor Magliocca notes this comment from Chief Justice Marshall (in his biography of George Washington): 

In asserting the authority of the legislature to pass the bill, gentlemen contended, that incidental as well as express powers must necessarily belong to every government: and that, when a power is delegated to effect particular objects, all the known and usual means of effecting them, must pass as incidental to it. To remove all doubt on this subject, the constitution of the United States had recognized the principle, by enabling congress to make all laws which may be necessary and proper for carrying into execution the powers vested in the government. They maintained the sound construction of this grant to be a recognition of an authority in the national legislature, to employ all the known and usual means for executing the powers vested in the government. Then they took a comprehensive view of those powers, and contended that a bank was a known and usual instrument by which several of them were exercised.

Thus he (Magliocca) finds in Marshall's quote an alternative test for necessary and proper: that the implied power claimed by Congress under the clause be a "known and usual means" for carrying into execution an enumerated power.  In conclusion:

I think that "known and usual means" is a more helpful test for analyzing incidental powers (especially in light of over two centuries of practice) than the more typical formulations. 

For example, the thrust of the Chief Justice's opinion in Sebelius was that a mandate to buy health insurance was unusual--it was not a "known and usual means" for exercising the commerce power. The same could be said for a federal vaccination mandate on private employers, if you assume that OSHA even has that power under the relevant statute. And so on.