The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, as readers of this blog surely know, the Supreme Court heard oral argument in Zivotofsky v. Kerry, which considers the validity of a law regulating the content of U.S. passports. One constitutional question potentially implicated in the case is the scope of the Necessary and Proper Clause, in particular Congress's power to "make all laws which shall be necessary and proper for carrying into execution … all other powers vested by this Constitution … in any department or officer" of the federal government. (The clause is mentioned very briefly by Jack Goldsmith here; it still leaves open the question of a different congressional power, like commerce, discussed by Eugene Kontorovich.)
When Congress is making a law "for carrying into execution" the executive power, how much does Congress get to disagree with the executive's view about how that power should be exercised?
Here's are a few bits from Manning:
The Necessary and Proper Clause, however, is a kind of master clause - one that is directed explicitly at the allocation of such decisionmaking authority. Indeed, it is part of a family of such clauses that tell us both when Congress has special responsibility to implement the Constitution and which parts of the Constitution fall within that authority.
Indeed, the clause states that Congress has the power to implement not only its own powers, but also "all other Powers vested by this Constitution . . . in any Department or Officer" of the government. Hence, as long as Congress acts constitutionally, the clause gives it express priority over the coordinate branches as implementer-in-chief.
When it comes to composing the government … the Constitution is not neutral between Congress and the coordinate branches. Rather, the Necessary and Proper Clause, as noted, gives Congress power to implement not only its own powers, but also "all other Powers vested . . . in any Department or Officer" of the federal government. Hence, to put it in the Court's terms, if the question in Morrison was whether the removal restriction was "proper" - whether it complied with the structural underpinnings of the Constitution - then it seems meaningful, to put it mildly, that the Constitution assigns that question explicitly to Congress.
And here's me:
Manning also argues that the specification of Congress is especially relevant because the Necessary and Proper Clause "is a kind of master clause - one that is directed explicitly at the allocation of [constitutional] decisionmaking authority." Yet one could just as easily see the clause as servant, rather than master, including only incidental powers to effectuate the others. As a "servant clause," it would authorize Congress to implement other constitutional powers without altering the broad outline of congressional or judicial power. The historical statements about the clause being tautologous and redundant and excluding great powers seem to point to this more modest reading.
The question of whether the Necessary and Proper Clause is to be a master clause or a servant clause arises again in Manning's supplementary textual argument about the separation of powers. The "horizontal" component of the clause authorizes Congress "to make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution . . . in any Department or Officer [of the U.S. government.]" Manning reads it this way: "as long as Congress acts constitutionally, the clause gives it express priority over the coordinate branches as implementer-in-chief."
But, again, that is not the only reading. One can instead read the requirement that the law be "proper for carrying into execution" the executive power as a requirement that the law be in aid or support of the President's constitutional judgment about what is proper. As Professors Sai Prakash and Michael Ramsey have put it: "Since it is derivative of the President's power, it must be exercised in coordination with, and not in opposition to, the President."
The text can be read to impose similar limits on the scope of Congress's power to make laws "necessary and proper for carrying into Execution" the power of the federal courts. While the clause has long been read to establish Congress's power to create procedural rules, the text does not seem to take a position on whether those rules can be valid when in opposition to the Supreme Court's own judgment about how to implement the judicial power. For restrictions on the powers of lower courts, as with restrictions on the powers of statutory officers, Congress's implementing powers might be bolstered by the fact that it is the one that creates them. Again my point is not that these more limited readings of the horizontal Necessary and Proper Clause are necessarily right. But they are plausible, and the text itself does not tell us how to choose between them.
I'll be interested to see if the court ends up adding anything new to this debate, or if it resolves the case on other grounds.