The Necessary and Proper Clause: Master or servant?

The Volokh Conspiracy ^ | November 13, 2014 | Will Baude

[right-wing agnostic]

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?

[Talisker]

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?

Hint: If you don't know how the 14th Amendment works, your gonna get the answer wrong...