Con Law IEnumerated Powers and McCulloch

Necessary and Proper Today

United States v. Comstock (2010) upheld civil commitment of dangerous federal prisoners as a rational means connected to enumerated powers; in NFIB v. Sebelius (2012) Chief Justice Roberts wrote that the individual mandate was not a "proper" means under the clause.

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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

Why ask whether a law is "proper" as well as "necessary"? The clause uses both words. "Necessary" asks about fit: is the law a reasonable means to an enumerated end? "Proper," on the reading in NFIB, asks whether the means respects the Constitution's structure: a means that would give Congress a power the Constitution withheld, or that would remove the limits on another power, is not proper even if it is useful.

Key idea

United States v. Comstock (2010), 7 to 2: civil commitment of dangerous federal prisoners is a rational means connected to enumerated powers. NFIB v. Sebelius (2012): Chief Justice Roberts wrote that the individual mandate was not a "proper" means under the clause. Both apply McCulloch; they differ on whether a measure respects limited powers.

Worked example: Comstock's chain of means

Where is the enumerated power in Comstock? Nothing in Article I mentions prisons.
  1. Congress has enumerated powers (commerce, taxing, and others) and may make federal crimes as means of carrying them out.
  2. Prisons are a means of enforcing those crimes; care and custody of prisoners is a means of running prisons.
  3. Commitment of a dangerous prisoner at release is, in the majority's view, a reasonable means of responsible custody.
  4. 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

Why did the Necessary and Proper Clause support the law in Comstock but not the mandate in NFIB, according to the controlling opinions?
  1. Comstock: the law managed people already in federal custody, a role the national government already held.
  2. 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.
  3. 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

Treating Comstock and NFIB as contradictory. Both accept McCulloch's test for means; they reach different results on different measures. Check: what enumerated power is the law carrying out, and does the means respect the structure of limited powers?

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.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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