The "Rational Federalist": Synthesizing Necessity and Propriety in the Sweeping Clause

Authors

Shane Magnetti

Document Type

Note

Abstract

(Excerpt)

This Note will argue that flexibility as to what constitutes a “necessary” law combined with a rigid standard for what makes a law “proper” enables Congress to execute its enumerated powers without overreaching. Part I outlines differing scholarly theories as to the legal origins of the Necessary and Proper Clause. Sections A, B, and C outline the theories that the Clause stems from principles of agency law, administrative law, and corporate law, respectively. Section D examines the implied powers theory of the Clause’s genesis. Next, Part II examines the Supreme Court’s early Necessary and Proper Clause jurisprudence—namely McCulloch v. Maryland, the seminal case which set the Clause in motion. Part III outlines four different categories of Necessary and Proper Clause interpretation that the Supreme Court has recently espoused. Section A examines two broad forms: the “Rational Connection” approach and the “Chain-link” approach. Conversely, section B examines two narrow forms: the “One-step” approach and the “Federalist Restriction” approach. Finally, Part IV will argue that a combination of the “Rational Connection” approach and the “Federalist Restriction” is ultimately the soundest construction of the Necessary and Proper Clause.