Putting a Stop to Congressional Overreach

It's time for the Supreme Court to enforce the Necessary and Proper Clause


In early September, Fox News host Andrew Napolitano asked Rep. James Clyburn (D-S.C.), the third-ranking Democrat in the House of Representatives, precisely what part of the Constitution authorized Congress to enact health care legislation. "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do," Clyburn replied. "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

It was a rare flash of honesty from an elected official, revealing not only Clyburn's ignorance of the Constitution but his overt hostility to the document's system of checks and balances. And Clyburn is hardly alone. In legislation dealing with everything from crime to education, Congress routinely oversteps its constitutional bounds. As Napolitano later remarked, Clyburn seems "to have conveniently forgotten that the federal government has only specific enumerated powers."

Later this term, the U.S. Supreme Court will have a great opportunity to remind Clyburn and his colleagues of those limits when it hears oral arguments in the case of U.S. v. Comstock. At issue is the Adam Walsh Child Protection and Safety Act of 2006, which empowers federal officials to order the indefinite civil commitment of "sexually dangerous" persons who have finished serving a federal sentence, or who are currently in the custody of the attorney general because they were found mentally incompetent to stand trial. In other words, the government isn't willing to let these people back on the streets.

In its brief to the Supreme Court, the government argues that Congress possesses this authority under the Constitution's Necessary and Proper Clause, which grants Congress the 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."

Yet as the text itself clearly specifies, any law passed under the Necessary and Proper Clause must also be tied to a specifically enumerated constitutional power, either one of the "foregoing powers" listed in Article I, Sec. 8, or one of the "other powers vested by this Constitution." As James Madison told the Virginia ratifying convention, the Necessary and Proper Clause "only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause."

So where among the "foregoing Powers, and all other Powers vested by this Constitution" did Congress happen to find an explicitly enumerated power to indefinitely detain "sexually dangerous" prisoners?

The answer is: Nowhere. The Constitution provides no such authority. Indeed, as a superb friend of the court brief filed in the case by Georgetown law professor Randy Barnett makes clear, "However well intentioned Congress may have been, it had no power to legislate for the purpose of protecting the public from dangerous persons….The Necessary and Proper Clause is not an independent source of Congressional power."

Nor may Congress rely on the Commerce Clause—another favored source for sweeping federal power. Under that clause, which the government has briefly raised as a justification in the case, Congress possesses the authority "to regulate commerce…among the several states," a power the Supreme Court has controversially extended to cover intrastate commerce as well as commerce "among the states." Most recently, in Gonzales v. Raich (2005), the Court permitted the federal government to regulate the local cultivation of medical marijuana in California on the extremely dubious grounds that such cultivation also affected the nationwide market.

Yet the law at issue in Comstock fails to meet even the Court's notoriously generous Raich interpretation—something the Barnett brief is careful to explain. As Justice Antonin Scalia held in his Raich concurrence, "Congress may regulate noneconomic intrastate activities only where the failure to do so 'could…undercut' its regulation of interstate commerce." Since overturning the law in Comstock would in no way undercut any legitimate federal regulation of commercial activity, neither Raich nor the Commerce Clause apply.

Which brings us back to Rep. Clyburn and his colleagues. With so many members of Congress either unwilling or unable to abide by the clear limitations imposed by the plain text of the Constitution, the time has come for the Supreme Court to rein them in. Enforcing the Necessary and Proper Clause is a great way to start.

Damon W. Root is an associate editor at Reason magazine.