In this article, the author maintains that, if the courts are to hold Congress to the exercise of its enumerated powers, then they must come to grips with the congressional power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." While the Necessary and Proper Clause has long been used to greatly expand congressional power, he argues that, to the contrary, it provides a two-part standard against which all national legislation should be judged: Such laws shall be "necessary and proper." According to this standard, laws that are either unnecessary or improper are beyond the powers of Congress to enact.
In part I, the author considers the meaning of this requirement. First, he identifies what he calls the Madisonian and Marshallian conceptions of necessity. Next, the author discusses the meaning of "proper," the other half of the standard that all laws enacted by Congress must meet and discuss how propriety is distinct from necessity. Finally, in part II, he considers a doctrinal means of implementing the Necessary and Proper Clause. The author concludes that a rigorous application of the necessary and proper standard would serve to protect both the enumerated and, especially, the unenumerated rights retained by the people.
44 UCLA L. Rev. 745-793 (1997)
Scholarly Commons Citation
Barnett, Randy E., "Necessary and Proper" (1997). Georgetown Law Faculty Publications and Other Works. 1244.