Should the "Necessary and Proper Clause" be interpreted as authorizing actions rationally related to one of the listed powers, or only actions "necessary" to carrying out a listed power?
Thomas Jefferson had serious doubts as to whether the Constitution gave him the power to acquire land from France through the Louisiana Purchase, but he went ahead with the deal anyway. Was the Louisiana Purchase constitutional? What might be the constitutional source for the power to acquire lands? In McCulloch vs Maryland , Chief Justice Marshall notes that the Constitution is not a statute, and suggests that it should be read more liberally and flexibly than a statute so that it might serve the ages.
Do you find Marshall's argument about constitutional interpretation persuasive? Thomas Jefferson was none too pleased with the decision in McCulloch. Jefferson said, "The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric.
In Gettysburg , the Court says that to justify an exercise of congressional power, "any number of powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred.
What exactly was the enumerated power, if any, that the civil commitment program upheld in Comstock executes? Do you think the program is too far removed from any of the enumerated powers to be unconstitutional? What implications does Comstock have for the debate about the constitutionality of the healthcare reform legislation?
Does the decision suggest that mentally unstable and uncurable jihadists being held at Guantanamo or elsewhere could, constitutionally, be kept in detention forever? Questions 1. Introduction The United States is a government of enumerated powers.
But the widest application of the Necessary and Proper Clause has occurred in the field of monetary and fiscal controls.
Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define, and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded. One of the most expansive interpretations of the Necessary and Proper Clause arose in the context of the administration of the federal penal system.
In United States v. Comstock , the Court evaluated a federal statute which allowed for the civil commitment of a federal prisoner past the term of his imprisonment if that prisoner would have serious difficulty in refraining from sexually violent conduct or child molestation. In evaluating these factors, the Court noted that 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.
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. It sustained the act setting up the Federal Farm Loan Banks to provide funds for mortgage loans on agricultural land against the contention that the right of the Secretary of the Treasury, which he had not exercised, to use these banks as depositories of public funds, was merely a pretext for chartering those banks for private purposes.
A prohibitive tax on the notes of state banks, the issuance of treasury notes impressed with the quality of legal tender in payment of private debts and the abrogation of clauses in private contracts, which called for payment in gold coin, were sustained as appropriate measures for carrying into effect some or all of the foregoing powers. In addition to the creation of banks, Congress has been held to have authority to charter a railroad corporation, or a corporation to construct an interstate bridge, as instrumentalities for promoting commerce among the states, and to create corporations to manufacture aircraft or merchant vessels as incidental to the war power.
The Necessary and Proper Clause enables Congress to pass special laws to require other departments of the government to prosecute or adjudicate particular claims, whether asserted by the government itself or by private persons.
In , Congress adopted a Joint Resolution directing the President to cause suit to be instituted for the cancellation of certain oil leases alleged to have been obtained from the government by fraud and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts.
This resolution also authorized the appointment of special counsel to have charge of such litigation. Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law that existed at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction.
Fisher, 6 U. It has, consequently, a right to make remittance, by bills or otherwise, and to take those precautions which will render the transaction safe. Henkel, U. See also Missouri v. Holland, U. Congress may also legislate to protect its spending power.
Sabri v. United States, U. United States, 91 U. Fox, 95 U. Hall, 98 U. 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. Two teams of leading constitutional scholars—team libertarian and team progressive—present their ideal constitutions.
On this day in , George Washington signed into law the act that created the Treasury Department. The move became crucial to…. The Advanced Placement AP exam has been…. Siegel David W. Siegel, David W. Read the full discussion here. Matters of Debate. Podcast The Constitution Drafting Project.
0コメント