Legal Commentary

A Brief Reply to Orin on the Necessary and Proper Clause

By Jonathan H. Adler

In my post below I wrote that ?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.? Orin suggests that a passage from United States v. Comstock, quoting Burroughs v. Untied States), suggests otherwise, but I don?t think so.

The passage at issue is:

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.

This is true, as far as it goes. The ?degree of necessity? and ?closeness of the relationship? are left up to Congress, but these are not the only relevant questions under the Necessary and Proper Clause, as Comstock makes clear. Rather, the Court in Comstock explains, there are five factors for the Court to consider in evaluating the constitutionality of a Congressional assertion of its Necessary and Proper Clause power. The passage Orin cites is from its discussion of the first. So even granting that the individual mandate passes this test does not establish 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.?

Full post as published by The Volokh Conspiracy on December 14, 2010 (boomark / email).