See also Missouri v. Holland, U. Congress may also legislate to protect its spending power. Sabri v. United States, U. United States, 91 U. Fox, 95 U. Hall, 98 U. Worrall, 2 U. Maryland, 17 U. Marigold, 50 U. Barnow, U. Waddell, U. Mosley, U. See also Rakes v.
May 17, Kebodeaux , U. Lee Optical Co. Bank of the United States, 22 U. See also Pittman v. Follows ex rel. Union Trust Co. Duncan, U. Kansas City Title Co. Greenman, U. It is a close question as a matter of original meaning, for example, whether Congress can incorporate a national bank as an incident to its enumerated financial powers. But some questions are easy. Congress can clearly create federal offices and impose penalties for violation of federal law as incidents to its principal powers.
Comstock , is patently a principal rather than incidental power. The power to regulate intra-state commerce, which grounds much of the modern federal regulatory regime, may also qualify as a principal power. If so, no amount of necessity, convenience, or helpfulness can turn a principal power into an incident. For more detail on the claims in this statement, see Gary Lawson, Geoffrey P.
Miller, Robert G. Forum Article I, Section 8, is not a collection of unrelated legislative powers. The collective action principle reflects the primary reason why the Framers created a national government with substantially more authority than it possessed under the Articles of Confederation.
See Robert D. The Framers wrote Section 8 to address serious collective action problems facing the states during the s. They especially wanted to protect the states from one another in the commercial sphere and from European powers in the military sphere.
States acted individually when they needed to act collectively, discriminating against interstate commerce and free riding on the contributions of other states to the national treasury and military. Moreover, Congress lacked the power to address those problems. First, the Clause underscores that Congress possesses the authority not just to directly solve collective action problems through use of its enumerated powers, but also to pass laws that do not themselves solve such problems but are convenient or useful to carrying into execution congressional powers that do.
Such a prohibition solves collective action problems by, for instance, dis-incentivizing insurance companies from moving to states that allow them to deny coverage to people with pre-existing conditions. A requirement to purchase insurance is convenient for carrying this valid Commerce Clause regulation into effect because it combats the perverse incentive people would otherwise have to wait until they became sick to purchase insurance. They would have such an incentive because federal law guarantees them access to health insurance even after sickness arises.
With healthy people staying out of insurance markets and sick people filing claims, insurance premiums would increase substantially. See Neil S. A second way in which the Necessary and Proper Clause advances the collective action principle is by allowing Congress to solve collective action problems when other federal powers are unavailable. For example, the question presented in United States v. Comstock was whether any clause of Section 8 authorizes Congress to permit the U.
Attorney General to civilly commit mentally ill, sexually dangerous federal prisoners after they complete their federal sentences if no state will accept custody of them. The Court held that the Necessary and Proper Clause confers such authority, relying in part on the fact that the case implicated a collective action problem involving multiple states. After the sentence of a sexually dangerous prisoner has expired, the federal government might release him for civil commitment in several possible states.
The Court stressed that the federal statute helps solve the collective action problem. Under the Articles of Confederation, there was no separate Executive or Judiciary, and so federal law was largely unenforceable.
Hamilton argued for an expansive interpretation of the clause. His view would have authorized Congress to exercise a broad range of implied powers. On the other hand, Jefferson was concerned about vesting too much power in any one branch of government.
He argued that "necessary" was a restrictive adjective meaning essential. McCulloch v. Maryland was the first case in which the U. Supreme Court applied the Necessary and Proper Clause. Some constitutional historians believe that the opinion in McCulloch v.
Maryland represents an important act in the ultimate creation of the U. The case involved the question of whether Congress had the power to charter a bank.
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