McCulloch gave Congress wide choice of means. Two modern cases show how the test works today and where justices draw the edge. Both accept McCulloch; they ask whether a particular measure is a reasonable means that respects a government of limited powers.
Why it works
Key idea
Worked example: Comstock's chain of means
- Congress has enumerated powers (commerce, taxing, and others) and may make federal crimes as means of carrying them out.
- Prisons are a means of enforcing those crimes; care and custody of prisoners is a means of running prisons.
- Commitment of a dangerous prisoner at release is, in the majority's view, a reasonable means of responsible custody.
- The dissent answered that each step makes the link to an enumerated power weaker, and that the last step reaches a state concern.
Answer: The majority accepted a chain of means rooted in enumerated powers; the dissent thought the chain had become too long. Notice the disagreement is about application, not about McCulloch.
Worked example: Comparing the two
- Comstock: the law managed people already in federal custody, a role the national government already held.
- NFIB: the mandate would have drawn people who were not engaged in commerce into a market so that Congress could regulate them, a power the Commerce Clause itself did not give.
- Roberts saw that as using the clause to create a new substantive power, not to carry out an existing one.
Answer: Comstock carried out an existing federal role; the mandate, in Roberts's view, would have expanded the commerce power itself.
Common mistake
Madison expected the clause to be read as a grant of means only, in Federalist No. 44; Brutus warned it would be read to grant power over nearly everything. The two modern cases show both concerns at work.