John Mikhail (Georgetown University Law Center) has posted The Necessary and Proper Clauses (Georgetown Law Journal, Vol. 102, No. 4, 2014) on SSRN.  Here is the abstract:

The Article’s main purpose is to provide a new and more accurate account of the origins of the Necessary and Proper Clauses. I refer to the Necessary and Proper “Clauses” rather than to the Necessary and Proper “Clause” to emphasize that the relevant constitutional text is comprised of three distinct provisions, only the first of which concerns the enumerated powers in Article I, Section 8:

1.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

2.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States”

3.            “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in . . . any Department or Officer [of the United States]”

James Wilson was probably the most skilled and accomplished lawyer at the constitutional convention, and he appears to have devoted great care and attention to drafting these clauses for the Committee of Detail. Just why he drafted these clauses in this manner and how they influenced the subsequent development of American constitutional law are the primary subjects of this Article and of the broader research project of which it forms a part.

Among other things, the Article contends that the second Necessary and Proper Clause is particularly important for understanding the basic design of the Constitution. Unless it is treated as surplusage, this second clause indicates that the Constitution vests powers in the Government of the United States that are not merely identical or coextensive with the powers vested in Congress or other Departments or Officers of the United States. Because these additional powers are not specified or enumerated in the Constitution, they must be understood to be implied or unenumerated powers. The existence of implied or unenumerated powers is thus explicitly recognized by the precise text of the Constitution, much like the existence of unenumerated rights. Moreover, these “other powers” are distinct from the powers encompassed by the first Necessary and Proper Clause, which by its terms are limited to whatever instrumental powers are necessary and proper to carry into effect the “foregoing powers” vested in Congress by Article I, Section 8.

The second Necessary and Proper Clause was intended to achieve precisely this objective: to declare and to incorporate into the Constitution the doctrines of implied and inherent powers that Wilson, Robert Morris, Gouverneur Morris, Alexander Hamilton, and other prominent nationalists at the convention had advocated throughout the previous decade, and that Wilson, in particular, had defended on behalf of the Bank of North America in 1785. Recent scholarship on the Necessary and Proper Clause has tended to skip over this preconvention history, but it is essential for understanding why the nationalists were so committed to implied powers, and how they managed to ensure that the Constitution delegated both express and implied powers to the United States.

Part I introduces the central theme of the Article by distinguishing the main components of the Necessary and Proper Clause and by recalling some of the distinct roles these provisions played during the formative era of American constitutional law. Part II explores the intellectual origins of these provisions by examining the genesis of Resolution VI of the Virginia Plan and by tracing some of the important links between its key legislative proposal and the political philosophy of the nationalists. Part III takes a close look at the drafting history of the Necessary and Proper Clause in the Committee of Detail, focusing on the contributions of Wilson, which previous scholarship has frequently ignored. Drawing on extensive historical research, Part IV examines the eighteenth-century origins of the phrases “necessary and proper” and “all other powers,” demonstrating inter alia that these were familiar features of the sweeping clauses in corporate charters and other legal instruments with which Wilson and other framers were intimately acquainted.

In sum, the Article contends that the basic design of the Constitution and the influential debates over the scope of federal power that occurred during the founding era cannot be understood properly unless one recognizes that there are three Necessary and Proper Clauses, not merely one or two. The framers could easily have drafted a Necessary and Proper Clause that gave Congress the authority “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 any Department or Officer of the United States.” The fact that they did not do so requires us to come to grips with the exact language they did adopt, and to ask a simple but penetrating question that goes to the heart of the framers’ constitutional design: What powers are vested by the Constitution in the Government of the United States? Whatever answer is given to this question, it cannot be adequate or sufficient merely to point to the enumerated powers of Congress in Article I, Section 8; the other powers vested by the Constitution in the Departments or Officers of the United States; and the instrumental powers to carry all of these powers into execution, which are given to Congress by the Necessary and Proper Clause. To remain faithful to the text, structure, and history of the Constitution, one must also provide a convincing account of the “other powers” vested by that Constitution in the Government of the United States, to which the second Necessary and Proper Clause refers.

(Thanks to Seth Barrett Tillman for the pointer).

I heard an earlier version of this paper presented at last year’s originalism works-in-progress conference in San Diego.  It’s an interesting project that discusses some underemphasized history and raises an important textual point about the necessary and proper clause (or, as Professor Mikhail rightly observes, the three necessary and proper clauses).  But I had some doubts then, and I still do.  In particular:

(1) The claim that the second part of the clause is redundant without Professor Mikhail’s explanation seems overstated.  Obviously there are powers given to the U.S. government that are not “foregoing powers”.  To pick just a few examples, the President and the Senate together have the power to make treaties and appointments (Art. II); Congress has power to establish inferior courts (Art. III); Congress has power to make regulations regarding U.S. property (Art. IV); the “United States” has the obligation — and thus one presumes the power — to guarantee to each state a republican form of government (Art. IV).  So the second part of the clause isn’t redundant of the first part.

Is the second part of the clause redundant of the third part (powers given to a “Department or Officer”)?  Perhaps.  But that conclusion depends on thinking that “Department” includes (a) the President; (b) the President combined with the Senate; (c) Congress acting with the President’s approval; (d) the Supreme Court; and (e) in the guarantee clause, at least, “the United States.”  It’s not obvious, to me anyway, that “Department” unambiguously had such a broad sweep, although it was used broadly in some contexts.  “Department” is used twice in other parts of the Constitution — in the opinions clause, where it appears as “executive Departments” and means subdivisions of a branch, and in the inferior officers appointments clause, where — whatever it means — it does not seem to refer to a combination of branches as would exercise, for example, the treatymaking power.

Thus, for example, it seems to me that if the necessary and proper clause had only its first and third provision and not the second, one could easily argue that it did not include the power to support the treatymaking power, because the treatymaking power is not (a) a “foregoing power” nor (b) exercised by any single Department or Officer.  As a result, I’m inclined to see the whole clause as a catchall — akin to saying powers of individuals, of parts of the government, or of the government as a whole — just to be sure all delegated powers are included, but not with any greater significance.

This is a crucial point, because the paper rests fundamentally on the proposition that the second part of the clause is redundant; I don’t think it is (or at least, I think it is an understandable belt-and-suspenders provision).  I agree that the clause is awkwardly phrased, because presumably it could just have said “all powers granted by this Constitution.”  But awkward phrases (or stylistic flourishes) don’t amount to troubling redundancies.

(2) Even if the second part of the clause is redundant, I don’t see how Professor Mikhail’s argument solves the problem.  If the national government has inherent or implied powers, those powers must vest in some part (or parts) of the government — just as delegated powers do.  For example, if there is an inherent power to pass legislation in the national interest (chartering a bank, for example), that power doesn’t vest in the undifferentiated “Government of the United States,” but rather in Congress (with the President’s approval or by a veto override).  In that sense, it’s no different from delegated powers of Congress that are not “foregoing power[s]” (for example, Congress’ Article IV powers).  If Congress is a “Department,” then the idea of inherent powers does not solve the redundancy.  (If Congress isn’t a Department, then there isn’t any redundancy in the first place).

(3) Professor Mikhail may be right that James Wilson thought that in drafting the clause he had done something clever to preserve the idea of inherent national powers.  I agree that Wilson likely believed in inherent powers (and perhaps Hamilton and others did as well).  The idea of inherent powers had enough currency that the antifederalists were openly afraid of it; these fears almost derailed ratification at several points and ultimately led to the Tenth Amendment.  But the question is not what Wilson subjectively believed — it’s whether the phrasing of the clause established a public meaning in support of inherent national powers.

On that point, the evidence seems extremely thin.  Madison and others repeatedly argued that the national government had only defined and delegated powers.  By time the Tenth Amendment was proposed and adopted, it was regarded as stating a truism contained in the original document.  I’m not aware that anyone pointed to the second part of the necessary and proper clause in particular during any of this debate as a source of unenumerated powers.  So even if Wilson privately read it that way, I don’t see how that establishes its public meaning.

In sum, it’s an excellent and provocative paper, but I’m not persuaded.  (I am persuaded, though, that the phrasing of the clause is worth additional thought.)

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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