As anticipated (by some), yesterday the Supreme Court granted cert in Department of Justice v. McNutt, which may become the leading originalist-oriented federalism cases in many years. Here is the question presented:
Whether the [federal] prohibition on the production of distilled spirits in particular locations, including “in any dwelling house” or “in any shed, yard, or inclosure connected with any dwelling house,” 26 U.S.C. 5178(a)(1)(B), is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.
At Volokh Conspiracy, Ilya Somin comments: Supreme Court Will Hear Necessary and Proper Clause Case on Federal Law Banning Home Distilleries – The case is likely to be the most important Necessary and Proper Clause case since 2012. From the introduction:
As explained in my earlier posts on the Fifth and Sixth Circuit decisions…, I think this law is not “proper,” and I hope the Supreme Court strikes it down. I summarize the reasons why in my post on the Fifth Circuit ruling:
The Fifth Circuit… concludes that the law in question exceeds Congress’ authority under the Necessary and Proper Clause, which grants the power to makes laws “necessary and proper” for carrying into execution other federal powers. I think the court is right that the law in question is not “proper.” The Supreme Court, in NFIB v. Sebelius (2012), ruled that a “proper” power permissible under the Clause is one that is “ancillary” to the implementation of an enumerated power. It cannot be a “great, substantive and independent” power. See my analysis in this article. The power claimed here is clearly “great and independent.” As Judge [Edith] Jones notes, “[u]nder the government’s logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity.”
I elaborated further in the post criticizing the Sixth Circuit decision:
[T]he Sixth Circuit is badly wrong to conclude that the law is “proper.” As explained in my earlier post, the Supreme Court, in NFIB v. Sebelius (2012), ruled that a “proper” power permissible under the Clause is one that is “ancillary” to the implementation of an enumerated power. It cannot be a “great, substantive and independent” power. The power to ban any home-based activity that might serve a substitute for taxable activity outside the home is clearly a “great and independent power.” As Judge Edith Jones explains in the Fifth Circuit ruling, “[u]nder the government’s logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity.”
Agreed, and I would add: the limitation is implied by the commerce clause, which gives Congress power to regulate commerce among the several states. That indicates that Congress does not have a general power to regulate things that are not commerce and not among the several states (as Chief Justice Marshall said in Gibbons v. Ogden). But Congress does have a general power to lay and collect taxes. So if Congress has a necessary and proper power to regulate anything it can tax, the implied limitation of the commerce clause would be destroyed. (But as Professor Somin notes, the Sixth Circuit decision holding to the contrary is by Judge Raymond Kethledge, a highly respected originalist-oriented judge, so it should not be thought to be an easy case.)
Posted at 6:02 AM