Working Paper No. 10-48:
Taking Stock of Comstock: The Necessary and Proper Clause and the Limits of Federal Power

Author(s):

Ilya Somin

Date Posted: September 2010

Availability:
Abstract (below) | Full text (most recent) on SSRN

Abstract:

Those who argue that the federal government has nearly unlimited authority often cite the Necessary and Proper Clause. That clause gives Congress the 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.’’ The Supreme Court’s recent decision in United States v. Comstock is a step in the direction of interpreting the clause as a virtual blank check for Congress to regulate almost any activity it wants. But the decision is vague on several key points, and its long-term effects are difficult to predict.

Part I of this article discusses Section 4248 of the Adam Walsh Act, the provision the Court upheld in Comstock. It also summarizes the majority, concurring, and dissenting opinions. Part II criticizes the Court’s reasoning. The majority’s extremely broad interpretation of the Necessary and Proper Clause may render much of the careful enumeration of congressional power in Article I of the Constitution superfluous. In addition, it tries to link the statute to a nebulous congressional authority to act as a ‘‘custodian’’ for federal prisoners that is itself not enumerated anywhere in the Constitution.

Part III considers the implications of Comstock for the future. The decision could strengthen the government’s case in the ongoing litigation over the massive health care bill passed by Congress in March 2010. Comstock’s broad interpretation of the Necessary and Proper Clause could be used to buttress the government’s constitutional justifications for the new health care law’s ‘‘individual mandate.’’ But the mandate might run afoul of the vague five-factor test that was a key element of Comstock. The ultimate impact of the decision may depend on how that test is interpreted and applied.