Necessary and Proper + Commerce Clause

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uzpakalis
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Necessary and Proper + Commerce Clause

Postby uzpakalis » Sun Mar 27, 2011 8:19 pm

How do these two relate with one another? Do I need to discuss the necessary and proper clause when I attack a commerce clause question? Sorry, I guess I'm a little hung up on commerce clause stuff after reviewing my outline....

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uzpakalis
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Re: Necessary and Proper + Commerce Clause

Postby uzpakalis » Sun Mar 27, 2011 8:37 pm

awesome!

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dood
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Re: Necessary and Proper + Commerce Clause

Postby dood » Sun Mar 27, 2011 8:38 pm

someone correct me if im wrong, but doesnt recent case law say congress only has power with the 2 combined? i.e. congress cannot legislate under only the N&P clause. must be commerce, spend & taxing, etc PLUS N&P clause.

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actorlaw
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Re: Necessary and Proper + Commerce Clause

Postby actorlaw » Sun Mar 27, 2011 10:02 pm

Don't forget when dealing with the commerce clause that you also have to worry about the dormant commerce clause... For when the court wants to exercise its wings.

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uzpakalis
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Re: Necessary and Proper + Commerce Clause

Postby uzpakalis » Mon Mar 28, 2011 9:32 am

actorlaw wrote:Don't forget when dealing with the commerce clause that you also have to worry about the dormant commerce clause... For when the court wants to exercise its wings.


Can you elaborate on this comment a bit? Say the question involves whether an act by Congress violates the commerce clause. Why would I need to discuss the dormant commerce clause?

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swc65
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Re: Necessary and Proper + Commerce Clause

Postby swc65 » Mon Mar 28, 2011 9:52 am

I was under the impression that the N&C was not a separate power. If you use the nec. and proper clause it has to be in reference to an enumerated power. In other words, you can't say Congress has the power to do X because of the necessary and proper clause only. You can say that Congress' action is necessary and proper for it to exercise its enumerated commerce power or tax and spend power.

Further necessary and proper does not mean actually necessary- it only means convenient/etc. Therefore an exercise commerce power does not need to be the only way that congress can achieve its goal. Congress as the power to choose among alternatives. Logically if there is more than one way to achieve something then any single action then no single alternative is technically necessary, so this outcome makes sense.

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swc65
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Re: Necessary and Proper + Commerce Clause

Postby swc65 » Mon Mar 28, 2011 9:52 am

uzpakalis wrote:
actorlaw wrote:Don't forget when dealing with the commerce clause that you also have to worry about the dormant commerce clause... For when the court wants to exercise its wings.


Can you elaborate on this comment a bit? Say the question involves whether an act by Congress violates the commerce clause. Why would I need to discuss the dormant commerce clause?



you wouldn't. See GTL

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BarbellDreams
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Re: Necessary and Proper + Commerce Clause

Postby BarbellDreams » Mon Mar 28, 2011 10:00 am

N&P is not seperate in that it does not stand by itself. You cant just say "Oh, this is necessary and proper so I am doing it", you always need to tie it into some other power and say that a certain action is necessary and proper in order to carry out that action effectively. Basically if you how that something is part of the commerce clause you have free reign to do whatever you want to control it under N&P, but if you cant show that an issue has to do with commerce (or any other constitutional power) you cant use N&P because the question always becomes "Well, you say its necessary and proper but necessary and proper for WHAT?"

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seespotrun
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Re: Necessary and Proper + Commerce Clause

Postby seespotrun » Mon Mar 28, 2011 12:50 pm

G. T. L. Rev. wrote:Justice Scalia's concurrence in Raich is probably the best place to get the answer to OP's question. Further reading: United States v. Comstock, 130 S. Ct. 1949 (2010); Sabri v. United States, 541 U.S. 600 (2004).


I like that Comstock is "further reading" on this point. OP will think that his question is answered after Raich, and then he'll have his Necessary-and-Proper-world turned upside down after he reads Comstock.

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YourCaptain
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Re: Necessary and Proper + Commerce Clause

Postby YourCaptain » Mon Mar 28, 2011 10:09 pm

Someone please correct me if I'm misinterpreting something here...

You can use the N&P clause to augment the another power; it's "Necessary & Proper" to regulate something wholly intrastate if it's for the purposes of regulating Interstate Commerce.

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swc65
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Re: Necessary and Proper + Commerce Clause

Postby swc65 » Mon Mar 28, 2011 10:59 pm

YourCaptain wrote:Someone please correct me if I'm misinterpreting something here...

You can use the N&P clause to augment the another power; it's "Necessary & Proper" to regulate something wholly intrastate if it's for the purposes of regulating Interstate Commerce.



Yes, but I just don't know if augment is the right word. It's more like saying that a certain action is constitutional because it is necessary and proper to an exercise of a legitimate power.




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