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Unpublished Paper
For Carrying Into Execution the Foregoing Powers: Interpretative Theories of the Necessary and Proper Clause in Light of United States v. Comstock
ExpressO (2011)
  • Marianella Medelius

The Necessary and Proper Clause, also known as the Sweeping Clause, is the last of the eighteen enumerated powers granted to Congress under Article I, Section 8 of the Constitution. The clause provides Congress with the ability to make laws necessary and proper to carry out the exercise of its powers. Contrary to what is often believed, the New Deal’s expansion of Congressional powers was not the product of the Supreme Court directly extending the scope of the Commerce Clause. Instead, it was the Court’s liberal interpretation of the Necessary and Proper Clause that enabled the Court to uphold laws as being “necessary and proper” to carry out Congress’s other enumerated powers. Therefore, its meaning is of vital importance in constitutional law. The lack of attention given to the Necessary and Proper Clause at the Philadelphia Convention, in addition to its vague language, has opened the door to a wide variety of interpretative theories that attempt to discern the Clause’s original meaning. Among these, and the focus of this paper, are Randy Barnett’s original public meaning approach, Gary Lawson and Patricia Granger’s theory focusing on the propriety element of the clause, Robert Natelson analyzing the origins of the clause from an agency-law perspective, and Robert Cooter and Neil Siegel’s general but related theory interpreting congressional powers of Article I, Section 8 under collective-action federalism. In order to discuss and analyze the foregoing theories, it will be necessary to apply their methodology to a specific case, United States v. Comstock, a recently decided Supreme Court case interpreting the Clause. Part I provides the factual and procedural history of the case, and summaries of the majority, concurring, and dissenting opinions. Parts II, III, IV and V summarize the four interpretative theories, each being followed by its application to the facts of Comstock. In applying the theories, the following central questions involved in the case will be considered: what the standard of review applicable to laws enacted under the Clause should be, whether the often-ignored propriety element of the clause has independent significance, and whether there are prudential considerations that may justify implying Congressional powers from the structure and penumbras of the Constitution. The paper will end with a brief conclusion.

Publication Date
October 18, 2011
Citation Information
Marianella Medelius. "For Carrying Into Execution the Foregoing Powers: Interpretative Theories of the Necessary and Proper Clause in Light of United States v. Comstock" ExpressO (2011)
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