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Thursday, June 27, 2013

"Great Substantive and Independent Powers"

I realize that to most people it's not even the fifth-most-interesting case decided this week, but I was particularly surprised and pleased to see Chief Justice Roberts's concurrence on Monday in United States v. Kebodeaux.  I am not sure whether the majority was right about the actual question presented (federal power over sex offenders), but I do have substantial praise for the Chief's views of the Necessary and Proper Clause:

While the Necessary and Proper Clause authorizes congressional action “incidental to [an enumerated] power, and conducive to its beneficial exercise,” Chief Justice Marshall was emphatic that no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” [McCulloch.] ... It is difficult to imagine a clearer example of such a “great substantive and independent power” than the power to “help protect the public . . . and alleviate public safety concerns,” ante, at 8. I find it implausible to suppose—and impossible to support—that the Framers intended to confer such authority by implication rather than expression. A power of that magnitude vested in the Federal Government is not “consist[ent] with the letter and spirit of the constitution,” [McCulloch] and thus not a “proper [means] for carrying into Execution” the enumerated powers of the Federal Government,
U. S. Const., Art. I, §8, cl. 18.

Until very recently, the reference to "great substantive and independent power" in McCulloch has gotten shocking little attention.  But it's invoked in the Chief's controlling opinion in NFIB v. Sebelius, and I also discuss it at length in my article on federal eminent domain and the Necessary and Proper Clause.  Indeed, as I explain in the article, variations on that same idea were invoked during constitutional debates many years before McCulloch, and are part of the original meaning of the Necessary and Proper Clause.  The greater a power, the less likely it is that it can be found by implication.  (I use the terminology "great power" in part because Madison said "great and important power," and in part because "great substantive and independent" is a real mouthful.) 

In any event, it looks like the idea is increasingly relevant to at least one Justice's thinking about the Necessary and Proper Clause, so I'd encourage people to read my article. :) 

Actually, speaking of increasing relevance, you can find pieces of the same idea in the Court's opinion (also written by the Chief) in Shelby County.  In its discussion of McCulloch, the Court writes:

The dissent proceeds from a flawed premise. It quotes the famous sentence from McCulloch v. Maryland, 4 Wheat. 316, 421 (1819), with the following emphasis: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Post, at 9 (emphasis in dissent). But this case is about a part of the sentence that the dissent does not emphasize—the part that asks whether a legislative means is “consist[ent] with the letter and spirit of the constitution.”

Now compare the last sentence of that blockquote with the one above from Kebodeaux.  In Kebodeaux, the Chief suggests that under the "letter and spirit of the constitution," an unenumerated "great power" can't be implied; it has to be granted explicitly if at all.  The repetition of that passage in Shelby County suggests that a similar idea is at work.  And in any event, you can see a similar concept throughout the opinion.  While Congress has broad enforcement power under the Fifteenth Amendment, the Court argues that the extraordinary and unusual nature of the Section 5 remedy make it harder to sustain under the general grant of McCulloch-like enforcement authority under the Reconstruction Amendments.

I suspect we'll see more of this next term.

Posted by Will Baude on June 27, 2013 at 03:02 AM in Constitutional thoughts | Permalink

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I agree that anyone interested in this subject should read Will's article.

As a matter of political reality, it is important that this idea comes from the pen of the Great Chief Justice. As a matter of original meaning (and as you point out), it is more important that this interpretive constraint on the interpretation of federal power was first described by James Madison even before the adoption of the Bill of Rights. See Madison, Speech in Opposition to the Bank Bill. His opponents in that debate generally accepted the interpretative rule, the issue was whether chartering a bank involved a great and important power.

Posted by: Kurt Lash | Jun 27, 2013 9:06:15 AM

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