Constitutional Sleight Of Hand
How two expressly delegated clauses became an unlimited grant of power
Originally Published On Substack December 1st, 2021
Our Constitution is a truly unique instrument. Not least for its unique place as a written, and therefore limited grant of authority to the government. This is in stark contrast all that came before it.
Consider the English Constitution that we had lived under as colonies of Great Britain. In William Blackstone’s Commentaries on the law of England he states:
Sovereignty and Legislature are indeed convertible terms; one cannot subsist without the other. This generality would suggest where power resides all others must conform to it and be directed by it. That an act of the legislature may alter the form and administration by a new edict or rule and put the execution of the laws into whatever hands it pleases and that all powers of the state must obey the legislative power in the execution of their several functions, or else the Constitution is at an end.
Likewise, Constitutional law is a unique aspect of American Jurisprudence. All other areas of law, such as contract law, property law and tort law are taught through developing an understanding the doctrines and rules governing that body of law. So, to learn contract law one memorizes the rules laid out by common law and the statutory laws that are applicable to the law of contracts.
Constitutional law is best understood by not only its modern rules of construction, but also the foundational understanding this instrument had to those who drafted and ratified it, and how that foundational understanding has evolved to give us our present understanding.
By understanding how the rules we have today came to be the rules that they are today, you will better understand what they are today.
Perhaps no case better illustrates this than the case of Gonzalez v Raich (2005). This is the case that found Marijuana grown and used by an individual that never enters any sort of sale, trade or barter is a regulable activity under Congress’ powers to regulate interstate commerce.
Most people have a tough time trying to find logic in this case. But the logic is there. That’s not to say the holding was correct, but it did have an underlying logic that ca be parsed out. But for that, you need to understand everything that came before it (which is much simpler, is more interesting than it likely sounds.)
You need to understand the role “Implied Powers” plays in our law. This means having an original understanding of the meaning of the commerce clause and Necessary and Proper Clause:
The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes
The Congress shall have Power 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.
And an understanding of every case that involves one or both of these clauses and has brought these two separate, delegated powers together into this new unlimited concept of implied powers. Even the biggest of the big government founders, like Alexander Hamilton, who never met a big government program he didn’t like, would bristle at the way their ideas have been co-opted to centralize more and more government power in our slow, steady creep towards statism.
Because, despite the words that make up the Commerce clause and Necessary and proper clause remaining constant over the past two centuries, the Supreme Court’s interpretation of their meaning and scope has not.
This article will be the first of a series that will begin by finding the Original Public Meaning of the Commerce and Necessary and Proper Clauses and tracing the cases and causes that have brought change & expansion over time. To show how these clauses have become the very “Elastic Clause” or “sweeping clause” the Anti-Federalists tried to warn us about.
Original Public Meaning
Commerce with Foreign Nations
The Congress shall have Power To…regulate Commerce with foreign Nations….
Even before the Constitutional Convention, James Madison had long argued that exclusive power over foreign commerce should be vested in the national government. Under the Articles of Confederation, the states had the power to raise tariffs against goods from others states and from foreign nations, creating, as Madison put it, “rival, conflicting and angry regulations.” Thus, Great Britain had been able to use its power over duties and tariffs to monopolize trade in its favor without the United States government having the ability to respond.
At Philadelphia, there was unanimity that one of the general powers of the new government should be to regulate foreign commerce. Even Anti-Federalist Luther Martin, who later left the Convention to oppose the Constitution, had no doubts about it. In fact, in The Federalist No. 42, one of Madison’s arguments for lodging the power to regulate commerce among the states with Congress was that “without this supplemental provision, the great and essential power of regulating foreign commerce, would have been incompleat [sic], and ineffectual.”
Some delegates, particularly from the South, wanted any regulation of foreign commerce to be effective only through a supermajority vote in Congress, but Madison successfully countered that a supermajority would cripple the government if it were necessary to retaliate against discriminatory tariffs from a foreign country.
Although Madison undoubtedly believed that the power to regulate foreign commerce was exclusive to the federal government, the proposition is not obvious from the text. Elsewhere, the Constitution denies the states certain powers over foreign commerce (no treaties or other agreements and no tariffs except under very limited circumstances). The text of the Commerce Clause does not differentiate between Congress’s power “to regulate” foreign commerce from its power over interstate commerce, and some Justices on the Supreme Court have opined that Congress’s power to regulate interstate commerce is coextensive with its power over foreign commerce. Nonetheless, a number of other opinions have held that Congress’s power over foreign commerce is qualitatively greater than its power to regulate commerce among the states, because it is part of the federal government’s complete sovereign power over foreign relations, in which the states have no standing. Brolan v. United States (1915). In Board of Trustees of University of Illinois v. United States (1933), the Court stated: “In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power.” And in Japan Line, Ltd. v. County of Los Angeles (1979), the Court declared that “[f]oreign commerce is preeminently a matter of national concern.” As early as 1827 in Brown v. Maryland, Chief Justice John Marshall held that both the Import-Export Clause and the Commerce with Foreign Nations Clause precluded a state from burdening an imported good with a tax or license so long as the good remained in the ownership of the importer and “in the original form or package,” though, later, the Court permitted states to prohibit dangerous or noxious foreign goods. Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health (1902).
The courts have affirmed Congress’ extensive power over foreign commerce. According to Professor Louis Henkin, the foreign commerce clause was originally the “basis for Congressional regulation of maritime and admiralty affairs and its control of immigration.” Subsequently, the clause has been the basis for extending American criminal jurisdiction abroad. Foreign commerce “includes both goods and services,” United States v. Clark (2006), and the regulation of foreign commerce “includes the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States.” United States ex rel. Turner v. Williams (1904). There must always be some nexus between the United States and the foreign commercial activity, but the nexus need not be extensive. For example, Congress’s power over foreign commerce does not turn on whether Americans are transporting American goods or even whether the voyage includes an American port, so long as the goods are being transported in American flag ships. Pacific Seafarers, Inc. v. Pacific Far East Line, Inc. (1968).
Unlike Congress’s power over commerce “among the several states,” federalism concerns are not as present in its control over foreign commerce. Today, the Court allows the states less power to tax foreign commerce than they have to tax interstate commerce. In Complete Auto Transit, Inc. v. Brady (1977), the Supreme Court declared that a state tax affecting interstate commerce would be valid only if it were:
(2) applied to an interstate activity that had a “substantial nexus” with the state,
(3) apportioned fairly, and
(4) connected to services that the state provided.
Later, in Japan Line, the Court added two further considerations to taxation of a foreign instrumentality:
(1) the danger of multiple taxation and
(2) the danger that the tax may damage the need for federal uniformity.
Even though the Court has been somewhat more generous in recent years in permitting state taxation that involves foreign commerce, the rules continue to suggest a greater federal constitutional interest in foreign commerce than in commerce among the states, where the background principles of federalism still have some presence.
Commerce Among The States
The Congress shall have Power…To regulate Commerce…among the several States….
The Commerce Among the States Clause (or, the Commerce Clause) operates both as a power delegated to Congress and as a constraint upon state legislation. No clause in the 1787 Constitution has been more disputed, and none has generated as many cases.
The narrowest definition of “to regulate” is to “make regular,” that is, to facilitate the free flow of goods, but not, except in cases of danger, to prohibit the flow of any good. Some scholars and a number of Supreme Court Justices have supported that narrow definition. In fact, in 1886, the House Judiciary Committee declared that a proposed bill that would have prohibited the sale of oleomargarine was against the original intent of the Framers. The Committee reasoned that the purpose of the Commerce Clause was to prevent state barriers to commerce, not to give Congress the power to do the same.
Nonetheless, the Supreme Court has never formally accepted a limited view of what “to regulate” means. From the beginning, Chief Justice John Marshall in Gibbons v. Ogden (1824) saw the power to regulate as coextensive with the other delegated powers of Congress. He declared: “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” In other words, “to regulate” is descriptive of the essential and core Congressional power to legislate. The manner in which Congress decides to regulate commerce, Marshall said, is completely at the discretion of Congress, subject only to the political check of the voters. Its exercise, therefore, is nonjusticiable. This power, as it later turned out, includes the power to prohibit the transportation of articles, as well as to control their exchange and the manner of transportation.
Even if “regulation” is a political question, the definition of “commerce,” however, is not up to Congress. It has an objective quality and is determinable by the courts. For many scholars such as Randy Barnett, Richard Epstein, and Raoul Berger, commerce means the trading, bartering, buying, and selling of goods, and they include the incidents of transporting those goods within the definition. Commerce would not include manufacturing or agriculture. Robert Pushaw and Grant Nelson assert a somewhat broader view, believing that commerce means “any market-based activity” having an economic component.
Justice Clarence Thomas has embraced the limited definition of commerce as trade: “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” He noted that the etymology of the word com-merce meant “with merchandise.” United States v. Lopez (1995). Much of the modern Supreme Court’s jurisprudence, however, regards commerce as comprising “economic activity” generally.
Commerce with the Indian Tribes
The Congress shall have Power To …regulate Commerce…with the Indian Tribes….
The Commerce Clause grants Congress powerto regulate commerce between the United States and three forms of sovereign entities: the states, foreign nations, and the Indian tribes. The Supreme Court has long assumed that the Indian Commerce Clause, along with the Treaty Clause (Article II, Section 2, Clause 2) granted Congress “plenary and exclusive power” over Indian affairs, a position recently affirmed in United States v. Lara (2004). For Justice Joseph Story, thepower to regulate trade and commerce with the Indian tribes passed naturally from the Crown to the federal government after the Revolution and, he argued in his Commentaries on the Constitution of the United States (1833), this clause con-firmed that proposition. In Worcester v. Georgia (1832), Chief Justice John Marshall confirmed the supremacy of federal authority over the states in regard to the Indians. In the late nineteenth century, the Supreme Court went even further. It asserted that the power over the Indian tribes was an attribute of sovereignty, unencumbered by the delegated powers doctrine of the Constitution. See, e.g., United States v. Kagama (1886).
But recent scholarship has cast serious doubt upon the proposition that the Framers intended the power to be exclusively in the hands of Congress.
At the Constitutional Convention, there were several different drafts describing how the Indians should be incorporated into the Constitution. Finding a single formula was not easy, because Indians resided within the states as well as within the United States. To begin with, during the colonial era, it is evident that the Colonies exercised concurrent jurisdiction with the Crown over Indians. During the drafting of the Articles of Confederation, the delegates had difficulty drawing an acceptable line between state and national jurisdiction over Indian affairs, but all seemed to agree that there had to be some degree of concurrency. The final formulation read: “The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians not members of any of the States; provided that the legislative right of any State within its own limits be not infringed or violated.”
The drafting of the Indian Commerce Clause was no less difficult. The Framers did not take up the regulation of Indians until August 18, when James Madison proposed Congress “regulate affairs with the Indians as well within as without the limits of the U. States.” The Committee of Detail revised Madison’s proposal to grant Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with Indians, within the Limits of any State, not subject to the laws thereof,” an echo of the Articles of Confederation. Working out the final details, the Committee of Eleven simply added “and with Indian Tribes” to the Commerce Clause, shunting aside the wording of previous proposals. Neither the final formulation, nor previous drafts, asserted exclusive congressional power in so many words.
Robert Natelson argues that the entire drafting history and the debate in the Convention demonstrate that the Framers intended the power over Indians to be concurrent with the states. Elsewhere in the Constitution, exclusive federal jurisdiction is sometimes declared in explicit terms, as in Article I, Section 8, Clause 17 (Enclave Clause), or through prohibitions placed upon the states (Article I, Section 10). Nonetheless, the Constitution contains other provisions, such as the Treaty Clause (Article II, Section 2, Clause 2) and the Property Clause (Article IV, Section 3, Clause 2) granting significant power over Indian affairs. And in case of any conflict with state law, there remains the force of the Supremacy Clause (Article VI, Clause 2).
Notwithstanding what might have been the understanding of the Framers, Congress has asserted plenary jurisdiction over the Indians. For the first century following the ratification of the Constitution, Congress regulated Indian affairs through the Trade and Intercourse Acts and through treaties. Tribes had juridical existence, not as foreign states, but as “domestic dependent nations,” Cherokee Nation v. Georgia (1831), and were entitled to rights in property and self-rule, subject to the will of Congress, Johnson v. McIntosh (1823). The Supreme Court declaredIndians as “wards” in a trust relationship with the United States government. Cherokee Nation v. Georgia; United States v. Kagama (1886).
Federal policy toward the Indians has developed through a number of phases, punctuated by treaties (until 1871), legislation, and conflict, but it has sought to reject state incursions into federal authority. Expansion of lands for settlement and Indian removal from east of the Mississippi dominated congressional attention until 1850. Thereafter, the government attempted to move the western tribes to reservations, which it followed, beginning in 1887, with a policy of assimilation. In 1924, Congress granted citizen-ship to all Indians born in the United States who had not been made citizens under a prior treaty. In the Indian “New Deal” beginning in 1934, the government ended the assimilation policy and sought to reorganize and maintain tribal structure. In the 1950s, however, federal policy veered again, this time toward ending tribal status and integrating the Indians into the political structure as individuals. In 1953, Congress began allowing some states to extend their jurisdiction to Indian areas within their borders, but beginning in 1968, policy once again reversed when the Indian Civil Rights Act extended constitutional guarantees to Indians in relation to their own tribal governments. At the same time, Congress sought to expand the areas of Indian local self-rule. Under the Indian Gaming Regulatory Act (1988), Indian tribes throughout the country have been able to establish gambling institutions on their lands under compacts entered into with the states.
The Supreme Court has been highly deferential to congressional control of relations with the Indian tribes, and the Court closely monitors under the Supremacy Clause any state legislation affecting the Indians. Furthermore, the Court has increasingly required the executive to abide by specific undertakings found in the laws and treaties dealing with the Indians, particularly in upholding Indian monetary claims.
There were few hesitations in Supreme Court opinions according deference to Congress until United States v. Lara (2004), a case in which the Court rejected a double jeopardy claim by an Indian, who had been convicted in a tribal court of violence against a policeman and was subsequently charged for the same offense in a federal court. In concurring, Justice Clarence Thomas declared that he could not locate congressional plenary authority over Indian affairs in the Treaty Clause or the Indian Commerce Clause.
Necessary and Proper Clause
The Congress shall have Power 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.
The delegates to the Constitutional Convention declared, by resolution, that Congress should possess power to legislate “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.” It was left to the Committee of Detail—a distinguished body consisting of four prominent lawyers (Oliver Ellsworth, Edmund Randolph, John Rutledge (chair), and James Wilson) and a prominent businessman (Nathaniel Gorham)— to translate that resolution into concrete form. At the Constitutional Convention, the Commit-tee of Detail took the Convention’s resolutions on national legislative authority and particularized them into a series of enumerated congressional powers. This formalized the principle of enumerated powers, under which federal law can govern only as to matters within the terms of some power-granting clause of the Constitution. By including the Necessary and Proper Clause at the conclusion of Article I, Section 8, the Framers set the criteria for laws that, even if they are not within the terms of other grants, serve to make other federal powers effective.
Although modern scholars often express bafflement at the Necessary and Proper Clause, the meaning and purpose of the clause would actually have been clear to an eighteenth-century citizen. The enumeration of congressional powers in Article I, Section 8 is similar to the enumeration of powers that one would find in an eighteenth-century private agency instrument or corporate charter. That is not surprising, as the Founders viewed the Constitution as, in the words of James Iredell, “a great power of attorney,” in which the principals (“We the People”) grant power to official agents (the government). Eighteenth-century agency law understood that grants of power to agents generally carried implied powers in their wake: the enumerated, or principal, granted powers were presumptively accompanied by implied, or incidental, powers that were needed to effectuate the principal powers. As William Blackstone wrote, “[a] subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant.” Agency instruments accordingly often referred to “necessary,” “proper,” or (most restrictively) “necessary and proper” incidental powers of agents. A Committee of Detail composed of lawyers and a businessman would have written, and a public accustomed to serving as or employing agents in a wide range of everyday affairs would have recognized, the Necessary and Proper Clause as a provision clarifying the scope of incidental powers accompanying the grants of enumerated (or principal) congressional powers.
So understood, the Framers crafted the Necessary and Proper Clause to serve three great purposes. The first was to facilitate organization of the government, such as empowering Congress to organize the judicial department and to create executive offices. The second was to help effectuate the other enumerated powers of Congress. The third, and most general, was to define the limits of these implied or incidental powers.
As to the first purpose, the Constitution could not prescribe all points of government organization, so Detail Committee member Edmund Randolph proposed empowering Congress to “organize the government.” James Wilson proposed the “necessary and proper” clause as a substitute, authorizing laws “for carrying into Execution” the “other” federal powers. The committee, and then the Convention, approved. The organizational function of this clause was recognized from the outset. Among Congress’s first acts were establishing executive departments and staffs, determining the number of Justices of the Supreme Court, and allocating the judicial power among federal courts. The Supreme Court has acknowledged the Necessary and Proper Clause as the source of Congress’s power to legislate about judicial process and procedure.
As to the second and more significant purpose, the clause also supports laws for carrying into execution “the foregoing Powers,” that is, those specified for the legislature itself in Article I, Section 8. It thus enhances the other powers given to Congress. During the ratification debates, opponents dubbed it the “sweeping clause” and the “general clause,” arguing that it subverted the principle of enumerated powers by giving sweeping general legislative competence to Congress. The Anti-Federalist Brutus, for example, said it “leaves the national legislature at liberty, to do every thing, which in their judgment is best.” Defenders of the Constitution strongly disagreed. At Pennsylvania’s ratification convention, James Wilson, the author of the clause, explained that the words “necessary and proper” are “limited and defined by the following, ‘for carrying into execution the foregoing powers.’ It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” It authorizes what is “necessary to render effectual the particular powers that are granted.” Congress thus can make laws about something otherwise outside the enumerated powers, insofar as those laws are “necessary and proper” to effectuate federal policy for something within an enumerated power.
The third purpose has the broadest implications for constitutional law. The Articles of Confederation expressly forbade any inference of incidental powers by specifying that “[e]ach state retains . . . every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled” (emphasis added). The Constitution contains no such clause, and it is therefore appropriate to find some measure of implied congressional powers. Had the Constitution been silent about implied powers, the ordinary back-ground rules of agency law would have mandated inferring some measure of such powers to effectuate the enumerated powers, but would have left uncertainty about how broadly or narrowly to construe the implied powers. By selecting a relatively restrictive phrase—“necessary and proper,” in the conjunctive—to describe the range of implied congressional powers, the Constitution eliminated that uncertainty by limiting implied powers to those that bear a close relationship to the principal powers.
Accordingly, every law enacted under the Necessary and Proper Clause must meet four requirements: (1) it must be incidental to a principal power; (2) it must be “for carrying into Execution” a principal power; (3) it must be “necessary” for that purpose; and (4) it must be “proper” for that purpose. And, because the clause provides that all such laws “shall be” necessary and proper for executing federal powers, rather than prescribing that such laws “shall be deemed by Congress” to be necessary and proper, these inquiries are all objective, contrary to Brutus’s suggestion of unreviewable congressional discretion.
In Part II we will discuss the very first expansion of implied powers that go beyond any specific delegated power of the new government when, on February 25th, 1791 Congress chartered the First Bank of the United States. As well as the two fundamental cases from the Marshall Court that affirmed this broader conception of implied powers: McCulloch v Maryland (1819) and Gibbons v Ogden (1824)