It’s often pretty easy to know whether or not a federal action is constitutional. In his Report of 1800, James Madison gave us a simple 2-step process to determine constitutionality.
“Whenever, therefore a question arises concerning the constitutionality of a particular power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided.”
In other words, if an express power exists authorizing the federal action, that settles the issue. The Feds can do it. For instance, there is no question that the federal government can run the post office. The power was specifically delegated in Article 1 Sec. 8. But there are only 20 to 30 express federal powers, depending on how you count them.
If there isn’t a specifically delegated power, that doesn’t automatically rule out the federal action. It can also exercise powers “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.”
So Madison gives us a second step.
“If it [the power] be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not; Congress cannot exercise it.” [Emphasis added]
So, if the federal action is absolutely necessary to carry out a power clearly spelled out in the Constitution, and it is a proper, and customary, way of carrying out the power, the feds can do it.
Otherwise, hands off.
The federal government has abused the necessary and proper clause, turning it into an “anything and everything” clause. But Madison clearly explained the limited nature of those words.
“The plain import of this clause is, that Congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.”
You can read more about the limits of necessary and proper HERE.
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