The Limits of Congressional Power
Volume 89, No. 1, Fall 2016
By Robert J. Reinstein, Clifford Scott Green Professor of Law, Temple University Beasley School of Law [PDF]

What are the outer limits of Congress’s legislative power? Many students of constitutional law believe that this question was answered in Chief Justice John Marshall’s seemingly expansive construction of the Necessary and Proper Clause in McCulloch v. Maryland. The conventional understanding of McCulloch is that a federal statute is constitutional when it is not prohibited by the Constitution and “constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” But Marshall added a warning that “the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.”

This warning has been prescient. The scope of congressional power, and even the meaning of McCulloch, has been the subject of enduring controversy. The debate is now particularly salient because certain Supreme Court Justices and scholars have recently adopted doctrines, originally asserted in 1791 by James Madison, limiting the scope of the Necessary and Proper Clause. Meanwhile, other scholars have meticulously analyzed McCulloch and challenged the conventional understanding by arguing that McCulloch is actually a moderate and limited validation of congressional power. If Madison’s doctrines or the other limiting interpretations of McCulloch proposed by scholars are adopted by the Supreme Court, the implied powers of Congress will be seriously curtailed.

This Article presents several submissions. First, Madison’s doctrines are wrong. The recent resurrections of his theories, and other proposed substantial restrictions on Congress’s implied powers, are based on an erroneous historical narrative of how the First Congress and President Washington’s cabinet understood the Necessary and Proper Clause, a misreading of McCulloch, and a failure to respect the differences between the judicial and legislative processes. Although the implied powers of Congress are very broad, this Article also submits that they are governed by a limiting principle. The criterion for the constitutionality of an implied power is the relation of the means to constitutionally authorized end.

This Article also presents an alternative model for the construction of Congress’s Article I powers that plausibly explains (1) why seemingly incidental powers are included among the express powers, (2) how the Article I enumerations serve the separation of powers, (3) how certain express powers are actually limitations on others (including, potentially, the Necessary and Proper Clause), and (4) how the constitutionality of an implied power of Congress is independent of the degree of its importance.