How to determine the legitimacy of claimed federal power

Applicable constitutional provisions:

Article 1, Section 8, CL. 18, provides “The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .”


There are three broad questions in cases on the legitimacy of federal power.

1. Is the power listed?

First, does the federal law or activity (such as executive branch administration or enforcement of law) fall within the government’s delegated powers? That is, does the government have the explicit power to involve itself in the matter? If not, the “law” or the activity is unconstitutional, the government loses, and the case is over.

2. Is the law implementing the power necessary?

Second, if the government has the explicit power, is the law or activity “necessary”, as the Constitution requires it be, for carrying out that power? If unnecessary, the law is unconstitutional, and again, the government loses.

In Dr. Johnson’s Dictionary, which was in use in America when the Constitution was written, “necessary” means “needful, indispensably requisite” and not merely “expedient.” And, as Mr. Jefferson said:

Mr. Jefferson: “[T]he Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. * * * Nothing but a necessity invincible by any other means, can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence.”[1]

3. Is the law proper?

If the law or activity stems from an explicit power and is necessary to carry out that power, is the law or activity “proper”, again as the Constitution requires? If “improper”, the government loses.

For example, if the “law” is within the enumerated powers of congress, but violates any other part of the Constitution, such as the prohibitions of Article I, Section 9, or any of the Bill of Rights, it would be “improper” and therefore unconstitutional.

[1] (Jefferson’s Opinion on the Constitutionality of a National Bank, 1791.)
Published in: on March 14, 2012 at 9:29 am  Leave a Comment  

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