What powers are granted by the "General Welfare" and the "Necessary And Proper" clauses?

Vanity Essay | 2015-02-07 | sourcery

[sourcery]

Do The "General Welfare" And The "Necessary And Proper" Clauses Grant Congress Powers And Authorities That Are In Addition To The Other Enumerated Powers?

"It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." ~ Marbury v. Madison, 5 U.S. 137

The interpretation of the General Welfare clause as a general grant of power separate from any of the others would cause most of Article I, section 8 to be "without effect." That alone destroys the argument that the General Welfare clause grants additional power to Congress instead of acting as a further restraint on how it uses the enumerated powers it is specifically granted. To interpret the General Welfare clause as a general grant of additional powers would render the explicit enumeration of powers that follow the General Welfare clause superfluous, since the scope of powers included in "for the general welfare" is far broader than that of the explicitly enumerated ones.

The General Welfare clause simply requires that, when Congress passes laws to regulate commerce (for example,) they must do so with the aim and effect of promoting the general welfare. It does not mean they can pass laws that promote the general welfare that don't qualify as an exercise of a granted power.

Were that not the case, the enumeration of specifically granted powers would have been completely unnecessary, and could have been left out of Article I without any change to the powers granted to Congress. But that cannot be the correct interpretation, because one of the most revered and influential rulings in the history of the Supreme Court said that interpreting the Constitution that way was impermissible.

Before the Constitution had even been ratified, critics argued that the "General Welfare" clause was a general grant of unlimited power.  James Madison refuted that interpretation in The Federalist #41:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.” 

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.” 

When Article I, section 8 enumerates the powers granted to Congress, there is only one sentence where Congress is granted any power to actually make any laws whatsoever:

"The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

There is no other sentence in the entire text of the original Constitution that specifically grants Congress any authority to make any laws.

Yes, Article I does say "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." But the intent of those words is clearly not to grant Congress unlimited authority to legislate as they please, but rather to explicitly limit whatever law-making authority that the Constitution is granting so that it applies to Congress alone, and does not apply to either the President or to the Supreme Court. The words that limit the grant of legislative authority to Congress do not say what legislative powers are granted, only that whatever they are, they are granted to Congress—and by omission of any such grant of authority, are denied to anyone else.

Similarly, the grant to Congress of the authority to "regulate commerce" is not a grant of authority to do so by making any laws. Congress could "regulate commerce" in other ways, such as by making treaties, signing contracts with the states, or even by signing contracts with private parties.

It is only the "Necessary And Proper Clause" that actually grants Congress any power to make laws in order to pursue the ends it is authorized to pursue by the preceding enumeration of the powers that it is being granted in Article I, section 8. So the clear intent and effect of the "Necessary and Proper Clause" is to require that whenever Congress does pass any laws, those laws must be for the purpose of "carrying into Execution the foregoing Powers," must be "necessary" for that purpose," and must be "proper" (rightful.)

That such is the intended meaning is made irrefutable by the text of the additional Amendments that grant Congress additional powers (some grant no additional powers.) Every single one of them that does grant additional powers includes a clause similar to the one included in the 26th Amendment (the last one ratified to date): "The Congress shall have power to enforce this article by appropriate legislation."

That fact conclusively proves that the grant of the power to seek a goal or an end, or to attempt to achieve a purpose, is separate and distinct from the power to make laws in order to pursue that end, goal, or purpose. Were that not the case, the additional clauses added to Amendments that specifically grant Congress the power to make laws in order to exercise or enforce the powers granted by the Amendments would be redundant. And an interpretation of the Constitution that makes entire numbered clauses redundant is "impermissible," according to Marbury vs. Madison.

So again, there is no way that the "Necessary and Proper Clause" was ever intended as a general grant of power beyond those that had just been explicitly enumerated. Had the "Necessary and Proper" clause been intended as a grant of additional authority instead of as a constraint on the laws that could be made pursuant to granted authorities, why bother enumerating any grants of authority at all?

For that reason, and also (independently) because of the precise wording used, the grant of the power to make laws that would be necessary and proper as a means to pursue the ends authorized by the Constitution could only have been intended as yet an additional restriction on the powers granted, so that to be Constitutional, the laws that Congress makes must not only be honest attempts to use a granted authority, must not also be for the general welfare, but must also be necessary for that purpose, and must also be proper (rightful.)

It is never "proper," never rightful, to violate the rights of individuals. Never. That means that the correct interpretation of the "necessary and proper" clause is that, although Congress may "build post roads," it may not kill people in order to do so, because that would not be proper (rightful,) no matter how "necessary" it might be in order to build a post road in some specific case. The same holds for any other individual right, and for any other granted power.

[Jacquerie]

From the post: But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?

Madison meant that Article I Section 8 is one sentence. He's right.

Around the 6th grade I learned the semicolon is used between closely related main clauses. Thus, there is no disconnect between the declaratory clause (common defense and general welfare) and the enumerated powers which follow. The enumerated powers are components of a single thought, to provide for our common defense and general welfare.

The Framers began with a broad statement, “provide for the common Defense and general Welfare,” and then got into specifics in the same sentence. It is no error or oversight that Article I, Section 8 was written as it was. It was purposely done in order to make sure that a reasonably literate people could not ignore, confuse or abuse its meaning. Congressional powers are thus strictly limited to those enumerated.

[Jacquerie]

Your closing paras are the best expositions on the necessary and proper clause I’ve read at FR.

[yefragetuwrabrumuy]

“The only way to address it is to make people afraid to obey the president if an order is clearly unconstitutional.”

Congress has long had the power to impeach *cabinet officers*, though they have only done so once. So all it needs is an enthusiastic congress willing to do so. Importantly, they need a test case for impeaching “czars” as well.

Imagine if after she plead the 5th, congress had voted to impeach and remove Lois Lerner? With a bar to future employment by the government, or any government contractor.

I would like to see congress impeach bureaucrat after bureaucrat, immediately following a vote of contempt of congress. If they blow off testifying. If they perjure themselves while testifying. If they plead the 5th. etc. They are out of a job.

[PGalt]

Thanks for the ping; post; thread. OUTSTANDING! BTTT!