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 the Government of the United States, or in any Department or Officer thereof. Congress has broad financial powers, including the power to tax and spend in order to pay debts and provide for the common defense and general welfare of the United States. Congress also has broad authority over the commercial interests of the nation, including the power to regulate commerce, 12 to establish bankruptcy laws, 13 to coin money, 14 to punish counterfeiters, 15 to establish post offices and post roads, 16 and to grant patents and copyrights.
Regulation of interstate commerce covers all movement of people and things across state lines, including communication and transportation.
Congress has broad powers over citizenship, including the power to define the circumstances under which immigrants may become citizens, 18 and to protect the rights of those persons who have citizenship. The Fourteenth Amendment gives Congress the power to enforce the guarantees of the Fourteenth Amendment, including the right to due process and equal protection.
Congress has the power and authority to purchase and administer property, and has power over those jurisdictions that are not controlled by states, such as the District of Columbia and the territories. As noted above, the U. Lopez , 30 however, the Supreme Court brought into question the extent to which Congress can rely on the Commerce Clause as a basis for federal jurisdiction. Under the Gun-Free School Zones Act of , Congress made it a federal offense for "any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.
Although the Court did not explicitly overrule any previous rulings upholding federal statutes passed under the authority of the Commerce Clause, the decision would appear to suggest new limits to Congress's legislative authority.
The scope and extent of the Commerce Clause does not appear to have been of particular concern to the framers of the Constitution. The Supreme Court, however, developed an expansive view of the Commerce Clause relatively early in the history of judicial review. For instance, Chief Justice Marshall wrote in that "the power over commerce It has been suggested that the Commerce Clause should be restricted to the regulation of "selling, buying, bartering and transporting.
Starting in , however, with the decision in NLRB v. In the NLRB case, the court upheld the National Labor Relations Act, finding that by controlling industrial labor strife, Congress was preventing burdens from being placed on interstate commerce.
By allowing Congress to regulate activities that were in the "stream" of commerce, the Court also set the stage for the regulation of a variety of other activities that "affect" commerce. Subsequent Court decisions found that Congress had considerable discretion in determining which activities "affect" interstate commerce, as long as the legislation was "reasonably" related to achieving its goals of regulating interstate commerce.
The Lopez case was significant in that it is the first time since that the Supreme Court struck down a federal statute purely based on a finding that Congress had exceeded its powers under the Commerce Clause.
Within the third category of activities that "affect commerce," the Court determined that the power to regulate commerce applies to intrastate activities only when they "substantially" affect commerce. The Court also recognized that while some intrastate activities may by themselves have a trivial effect on commerce, regulation of these activities may be constitutional if their regulation is an essential part of a larger economic regulatory scheme.
Thus, the Court even approved what has been perceived as one of its most expansive rulings, Wickard v. Filburn , which allowed the regulation of the production and consumption of wheat for home consumption. It held that it is not a regulation of channels of commerce, nor does it protect an instrumentality of commerce. Finally, its effect on interstate commerce was found to be too removed to be "substantial. It should be noted that the Lopez Court purported to be limiting, but not overruling, prior case law that had supported an expansive interpretation of the commerce clause.
Consequently, most existing federal laws, which have traditionally been drafted to be consistent with this case law, 59 would survive constitutional scrutiny even under Lopez. However, in at least one significant case, Congress passed a law, the Violence Against Women Act, that seemed to invoke the same concerns that the Court found in Lopez.
Consequently, the relevant portion of that act was struck down in United States v. In Morrison , the Court evaluated whether 42 U. Section , which provides a federal private right of action for victims of gender-motivated violence, was within the power of Congress to enact under the Commerce Clause.
In Morrison , the victim of an alleged rape brought suit against the alleged rapist, arguing that this portion of the act was sustainable because it addressed activities that substantially affect interstate commerce.
This point had been made previously in Lopez , and here the Court reaffirmed the holding that in order to fall under the acceptable category of laws that "substantially affect commerce," the underlying activity itself must generally be economic or commercial.
In the case of Gonzales v. Raich , 63 the Court evaluated an "as applied" challenge to the Controlled Substances Act as regards obtaining, manufacturing, or possessing marijuana for medical purposes.
The case was brought by two seriously ill residents of California who used marijuana in compliance with the California Compassionate Use Act of In upholding the application of the Controlled Substances Act in the Raich case, the Court relied on its decision in Wickard v. Filburn , 66 which held that "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.
The Court in Wickard held that Congress could regulate not only the wheat sold into commerce, but also wheat retained for consumption on a farm.
Based on Wickard , the Court in Raich held that Congress could consider the aggregate effect that allowing the production and consumption of marijuana for medical purposes would have on the illegal market for marijuana. In addition, because exempting the use of medical marijuana could undercut enforcement of the Controlled Substances Act, the Court found that the application in this case was within Congress's authority to "make all Laws which shall be necessary and proper" to effectuate its powers.
The Constitution provides Congress not only enumerated powers, but also the ability to pass laws to make such powers effective. While such a power might have been implied of necessity even without an explicit textual basis in the Constitution, the Founding Fathers specifically included congressional authority to "make all Laws which shall be necessary and proper" 73 to effectuate its powers. Although the extension of congressional power under this clause is not an independent basis for legislation, the provision has been integral to a broad interpretation of other congressional powers.
For instance, as discussed below, the expansive nature of modern Commerce Clause doctrine may actually be a reflection of Necessary and Proper Clause jurisprudence. Sometimes, the Court's reliance on the Necessary and Proper Clause in a particular case is only briefly noted, or may even exist sub silentio. For instance, the majority opinion in the case of Gonzales v.
Raich discussed above emphasized that, in evaluating the scope of Congress's authority under the Commerce Clause to regulate medicinal marijuana, the Court need only find that Congress had a "rational basis" to find a link between the legislation and the Commerce Clause.
The Court then went on to note that in such cases "Congress was acting well within its authority to 'make all Laws which shall be necessary and proper' to 'regulate Commerce This passing reference to the Necessary and Proper Clause may obscure its historical significance to Commerce Clause litigation. Writing in concurrence in Raich , Justice Scalia argued that it is more accurate to characterize the expansive "substantial effects" prong of Commerce Clause analysis as predominantly based on the Necessary and Proper Clause.
He noted that the current description of the "substantial effects" prong is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone.
Rather, "as this Court has acknowledged Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce including activities that have a substantial effect on interstate commerce derives from the Necessary and Proper Clause.
Another area where the Court has provided a similarly broad interpretation of an Article I congressional power based on the Necessary and Proper Clause is the Spending Clause. The defendant, who was convicted of attempting to bribe a city councilman to facilitate the building of a hotel and retail structure in Minneapolis, argued that the statute in question had no federal nexus.
The Court rejected this argument, holding that Congress's authority under the Spending Clause, when supplemented by the Necessary and Proper Clause, allowed Congress to ensure that federal dollars not be diverted or undermined by corruption.
The Court held that it was not important if the federal funds received by the governmental entity in question were not directly involved in a particular scheme, because "money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value.
An even more expansive interpretation of the Necessary and Proper Clause, in this case as applied to the entire federal criminal penal system which derives from a variety of congressional powers , is found in the Court's opinion in United States v.
The statute contained no requirement that the threatened future conduct would fall under federal jurisdiction, raising the question of what constitutional basis could be cited for the enforcement of the statute. The majority opinion in Comstock upheld the statute after considering five factors: 1 the historic breadth of the Necessary and Proper Clause; 2 the history of federal involvement in this area; 3 the reason for the statute's enactment; 4 the statute's accommodation of state interests; and 5 whether the scope of the statute was too attenuated from Article I powers.
Maryland , 81 where the Chief Justice wrote: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. Previous federal involvement in the area included not only the civil commitment of defendants who were incompetent to stand trial or who became insane during the course of their imprisonment, but, starting in , the continued confinement of those adjudged incompetent or insane past the end of their prison term.
In upholding the sex offender statute, the Court found that protection of the public and the probability that such prisoners would not be committed by the state represented a rational basis for the passage of such legislation. The Court further found that the state interests were protected by the legislation, as the statute provided for transfer of the committed individuals to state authorities willing to accept them. Finally, the Court found that the statute was not too attenuated from the Article I powers underlying the criminal laws which had been the basis for incarceration, as it related to the responsible administration of the United States prison system.
Another significant source of congressional power is Section 5 of the Fourteenth Amendment. The Fourteenth Amendment provides that states shall not deprive citizens of "life, liberty or property" without due process of law nor deprive them of equal protection of the laws. Section 5 provides that Congress has the power to legislate to enforce the amendment. The Fourteenth Amendment represented a significant shift of power in the nation's federal system.
Until the passage of the Fourteenth Amendment, the Constitution was limited to establishing the powers and limitations of the federal government.
However, the amendments passed immediately after the Civil War the Thirteenth, 82 Fourteenth, and Fifteenth 83 Amendments , dramatically altered this regime. Passage of these amendments subjected a state's control over its own citizens to oversight by either the federal judiciary or Congress. The most significant impact of the Fourteenth Amendment has been its implementation by the federal courts, as state legislation came under scrutiny for having violated due process or equal protection.
However, Congress has also seen fit to exercise its power under the Fourteenth Amendment to address issues such as voting rights and police brutality. The scope of Congress's power under Section 5 of the Fourteenth Amendment, however, has been in flux over the years. In Katzenbach v. Morgan , 84 the Court held that Section 5 of the Fourteenth Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment as defined by the courts, but to help define its scope.
In Katzenbach , the Court upheld a portion of the Voting Rights Act of that barred the application of English literacy requirements to persons who had reached 6 th grade in a Puerto Rican school taught in Spanish. In upholding the statute, the Court rejected the argument that Congress's power to legislate under the Fourteenth Amendment was limited to enforcing that which the Supreme Court found to be a violation of that amendment.
Rather, the Court held that Congress could enforce the Fourteenth Amendment by "appropriate" legislation consistent with the "letter and spirit of the constitution. The rationale for this holding appears to be that Congress has the ability to evaluate and address factual situations that it determines may lead to degradation of rights protected under the Fourteenth Amendment.
This is true even if a court would not find a constitutional violation to have occurred. In fact, what the Court appeared to have done was to require only that Congress establish a rational basis for why the legislation was necessary to protect a Fourteenth Amendment right.
Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. Mitchell , 85 the Court struck down a requirement that the voting age be lowered to 18 for state elections.
In prohibiting Congress from dictating the voting age for state elections, a splintered Court appears to have supported Congress's power to pass laws that protect Fourteenth Amendment rights against state intrusions, but rejected the ability of Congress to extend the substantive content of those rights. As year-olds are not a protected class under the Fourteenth Amendment, the Court found that Congress was attempting to create, rather than protect, Fourteenth Amendment rights.
More recently, in the case of Flores v. For many years prior to the passage of RFRA, a law of general applicability restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of the First Amendment, had to be justified by a compelling governmental interest.
However, in the case of Oregon v. Smith , 87 the Court had lowered this standard. The Smith case involved members of the Native American Church who were denied unemployment benefits when they lost their jobs for having used peyote during a religious ceremony. The Smith case held that neutral generally applicable laws may be applied to religious practices even if the law is not supported by a compelling governmental interest.
RFRA, in response, was an attempt by Congress to overturn the Smith case, and to require a compelling governmental interest when a state applied a generally applied law to religion. The City of Boerne case arose when the City of Boerne denied a church a building permit to expand, because the church was in a designated historical district. The church challenged the zoning decision under RFRA.
The Supreme Court reiterated that Section 5 of the Fourteenth Amendment gave Congress the power to enforce existing constitutional protections, but found that this did not automatically include the power to pass any legislation to protect these rights.
Instead, the Court held that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end. For instance, the Court's decision in Katzenbach v. Morgan of allowing the banning of literacy tests was justified based on an extensive history of minorities being denied suffrage in this country.
In contrast, the Court found no similar pattern of the use of neutral laws of general applicability disguising religious bigotry and animus against religion. The law focused on no one area of alleged harm to religion, but rather just broadly inhibited state and local regulations of all types.
The scope of the enforcement power under Section 5 of the Fourteenth Amendment also has become important in cases where the Court has found that Congress has overreached its power under other provision of the Constitution, or is limited by some provision thereof. I identify some of the key advantages of decentralizing most law-making at the state level in my statement on Federalism. Here is a summary of my analysis there:. In all these ways, liberty is more robustly protected by confining lawmaking to the state and local levels in a federal system, than moving all such decisions to the national level.
And the United States has been a far more prosperous and contented country because of its federal system, though our system of federalism could stand to be bolstered. But all these benefits and more are only available by enforcing the limits on Congressional power provided by the original meaning of the Commerce Clause. This is precisely what it was unable to do under the Articles of Confederation. Gibbons v. Combined with the Necessary and Proper Clause, the power is broad.
It is not, however, infinite. Maryland is to hold that Congress cannot use its commerce power when there is no colorable interstate problem to solve. That line is sometimes crossed. In United States v. The law scored cheap political points by appearing to address a pressing and difficult problem without contributing anything substantial to its solution. Yet when the Court has attempted to craft limits on the commerce power, the results have not been pretty.
The Court began with a constricted understanding of commerce as including only trade and navigation, and then— after some decades of preventing Congress from outlawing child labor—accommodated the modern state by stretching the meaning of this understanding and proliferating legal fictions, producing bizarrely formalistic law.
An understanding of commerce limited to trade constrains the federal government with no regard for the reasons why federal regulation might be necessary, and thus pointlessly casts doubt on laws governing civil rights, workplace safety, sanitary food, drug safety, and employee rights. More recently, the Court has declared that Congress has plenary authority over economic, but not noneconomic activity. Morrison If that were right, Congress would be deprived of authority over such nontrivial matters as the spoliation of the environment or the spread of contagious diseases across state lines.
In Gonzales v. In NFIB v. Sebelius , the Court held that the Necessary and Proper Clause did not permit Congress to compel activity, such as the purchase of health insurance. They purport to distinguish Gonzales v. The Scalia group seems to think that McCulloch adopted the rule it specifically rejected: the trouble with the mandate is that it was not absolutely necessary. No one can live in the world without engaging in self-initiated actions all the time.
On the other hand, the principle, had it been used to invalidate the statute, might have rendered the United States permanently incapable of repairing its massively dysfunctional health care system.
It is not clear that any judicial limit on the commerce power is necessary. The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the States. Of particular importance here, is the prevention of protectionist state policies that favor state citizens or businesses at the expense of non-citizens conducting business within that state.
In West Lynn Creamery Inc. Healy , U. The meaning of the word "commerce" is a source of controversy, as the Constitution does not explicitly define the word. Some argue that it refers simply to trade or exchange, while others claim that the Framers of the Constitution intended to describe more broadly commercial and social intercourse between citizens of different states.
Thus, the interpretation of "commerce" affects the appropriate dividing line between federal and state power. Moreover, what constitutes "interstate" commercial activity has also been subject to consistent debate. In Gibbons v. They especially wanted to protect the states from one another in the commercial sphere and from European powers in the military sphere.
States acted individually when they needed to act collectively, discriminating against interstate commerce and free riding on the contributions of other states to the national treasury and military. Moreover, Congress lacked the power to address those problems. First, the Clause underscores that Congress possesses the authority not just to directly solve collective action problems through use of its enumerated powers, but also to pass laws that do not themselves solve such problems but are convenient or useful to carrying into execution congressional powers that do.
Such a prohibition solves collective action problems by, for instance, dis-incentivizing insurance companies from moving to states that allow them to deny coverage to people with pre-existing conditions. A requirement to purchase insurance is convenient for carrying this valid Commerce Clause regulation into effect because it combats the perverse incentive people would otherwise have to wait until they became sick to purchase insurance.
They would have such an incentive because federal law guarantees them access to health insurance even after sickness arises. With healthy people staying out of insurance markets and sick people filing claims, insurance premiums would increase substantially. See Neil S. A second way in which the Necessary and Proper Clause advances the collective action principle is by allowing Congress to solve collective action problems when other federal powers are unavailable.
For example, the question presented in United States v. Comstock was whether any clause of Section 8 authorizes Congress to permit the U. Attorney General to civilly commit mentally ill, sexually dangerous federal prisoners after they complete their federal sentences if no state will accept custody of them.
The Court held that the Necessary and Proper Clause confers such authority, relying in part on the fact that the case implicated a collective action problem involving multiple states. After the sentence of a sexually dangerous prisoner has expired, the federal government might release him for civil commitment in several possible states. The Court stressed that the federal statute helps solve the collective action problem. Under the Articles of Confederation, there was no separate Executive or Judiciary, and so federal law was largely unenforceable.
Under the Constitution, Congress can ensure that federal laws—including solutions to collective action problems—are enforced effectively. Rather than being indispensable, each one was a convenient way of organizing the executive branch. See Jack M. Balkin, Living Originalism Federal legislation may not violate individual rights or contravene principles of separation of powers or federalism, including the collective action principle.
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