Legal Commentary

A Quick Reply to Jonathan on the Virginia Mandate Decision

By Orin Kerr

I appreciate Jonathan?s agreement with me that Judge Hudson?s analysis of the Necessary and Proper Clause is flawed. He then cautions, with emphasis added:

The Court?s decisions, from McCulloch to Comstock, only go so far in addressing this question. They clearly confirm that Congress can take some steps beyond the scopes of the other enumerated powers, but also reaffirm that federal power is limited, and none of the relevant cases stand for the proposition that it is for Congress, and Congress alone, to determine what may be enacted as necessary and proper to the execution of other constitutional measures.

I wonder, though, what Jonathan makes of this passage from United States v. Comstock:

If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.

(quoting Burroughs v. United States, 290 U. S. 534, 547?548 (1934)) (emphasis added).

I have to send a brief to the printers by tomorrow morning and I don?t know if I?ll have much time to post more on this issue, but I?m quite curious to know what Jonathan and others think of that passage and what they think it means. It seems to me that the judicial question framed in the 1934 Burroughs decision is only whether ?the means adopted are really calculated to attain the end.? Or so it seems to me based on the language quoted.

Full post as published by The Volokh Conspiracy on December 13, 2010 (boomark / email).