The Volokh Conspiracy

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"Court-Packing Isn't Just a Bad Idea—It's Downright Unconstitutional"


An interesting column by Dan Schmutter in the New York Post today, arguing that, while Congress's setting the initial size of the Court was "necessary and proper" and thus allowed under the Necessary and Proper Clause, changing the size to change its decisions would not be:

Can it reasonably be said that court-packing, an act whose goal is to materially alter the balance of power in Washington for explicitly ideological ends, lies within "the letter and spirit of the Constitution" [quoting McCulloch v. Maryland]? Hardly. Rather, it is a frontal assault against the separation of powers—a value deeply ingrained in the Constitution.

Thus, even if court-packing might meet the loose definition of necessary, it is difficult to say that such an assertion of congressional power would qualify as necessary and proper.

That important limitation on the Necessary and Proper Clause remains valid today. As recently as 2012, in the ObamaCare case NFIB v. Sebelius, the high court held that Congress couldn't look to the Necessary and Proper Clause for the authority to enact the Affordable Care Act's individual mandate. (The government ultimately won the case because the court held that the mandate was a tax and was therefore within Congress' enumerated powers.) … In rejecting the government's position, the court explained that "such laws, which are not consistent with the letter and spirit of the Constitution, are not proper means for carrying into execution Congress' enumerated powers. Rather, they are, in the words of The Federalist, merely acts of usurpation which deserve to be treated as such."

I'm skeptical about the argument; it seems to me that if setting the size of a body is "necessary and proper," changing it (whatever the underlying motive) would be, too. But I thought this was an interesting argument, and worth passing along.