Robert Reinstein (Temple University – James E. Beasley School of Law) has posted The Implied Powers of the United States (67 pages) on SSRN. Here is the abstract:
The conventional understanding of McCulloch v. Maryland is that an act of Congress must be within the scope of specified enumerated powers or an appropriate means to carry those specified powers into effect. But, as many scholars have observed, there is a major anomaly in this formulation. Important exercises of national power cannot readily be tied to specified enumerated powers or justified as means to effectuate those powers. Among other implied national powers, the general and exclusive national powers over foreign relations and immigration are commonly cited examples.
Several distinguished scholars, pointing to such anomalous powers, have argued that the means-ends approach of McCulloch is incorrect and that Congress possesses a more expansive regulatory power to legislate for the national general welfare, or, as sometimes articulated, to address all national necessities or exigencies. They rely, inter alia, on the general welfare clauses of the Preamble and Article I, Section 8; conceptions of inherent national sovereignty; the actions of the Constitutional Convention concerning Resolution VI of the Virginia Plan; and the “all other powers” provision of the Necessary and Proper Clause. Although these scholars present important insights, their arguments for a national general welfare power are not supported by constitutional text, history and structure.
This article proposes an original theory of how the enumerated powers should be construed and explains the source and scope of implied national powers. The error in using the mean-ends approach as setting the outer limits of national power is that it treats each specified enumerated power as independent of and unconnected to the others. Instead, the enumerated powers are deeply inter-connected and can and should be construed in the aggregate. Virtually all of the specified enumerated powers of all three branches are contained in four clusters of powers – common defense, foreign relations, preventing or resolving disputes between the States, and a national economic union. When viewed from the perspectives of text, history and structure, the Constitution vested four great aggregate powers (or comprehensive enumerated powers) in the Government of the United States. Implied national powers are constitutional when they are necessary and proper to carry one or more of those aggregate powers into effect.
This theory is based on (a) construing the Constitution as a whole and not as the accumulation of unrelated parts; (b) the historical origin of the enumerated powers in the actual long-standing distribution of powers between the imperial British government and the colonial assemblies; (c) the correspondence of these four comprehensive powers with the four essential purposes of the Union as stated in Federalist 23; (d) Alexander Hamilton’s argument of aggregate power in his defense of the Bank of the United States; (e) the Supreme Court’s adoption of Hamilton’s argument as the basis for upholding the Bank in McCulloch; (f) other precedents; and (g) Congress’s authority to carry into execution not only the specified enumerate powers but also “all other Powers vested by this Constitution in the Government of the United States.” Finally, this theory respects the Convention’s commitment to federalism by giving the national government plenary authority over four discrete areas that are essential to union while reserving extensive autonomy in the States and the people.
This is one of the papers being presented at the University of San Diego Originalism Works-in-Progress conference next weekend.
Posted at 6:05 AM