The Aggregate and Implied Powers of the United States

By Reinstein, Robert J. | American University Law Review, January 1, 2019 | Go to article overview

The Aggregate and Implied Powers of the United States


Reinstein, Robert J., American University Law Review


Introduction

McCulloch has governed constitutional law for the two centuries following its announcement. But the constitutional framework established in that decision was hardly stated with precision. consider Chief Justice Marshall's famous pronouncement of the framework for judging the constitutionality of congressional legislation:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.1

This Delphic injunction is fraught with ambiguity. Disputes have regularly arisen over whether implied powers chosen by congress are "appropriate" or "plainly adapted" to executing a constitutionally prescribed end.2 And there is a more fundamental ambiguity: what are the "ends" and "means" of national power? The decision has come to be understood as requiring that an act of Congress must either be within the scope of specified enumerated powers or must be legislation calculated to carry those specified powers into effect. 3 in this formulation, the "ends" are specific enumerated powers, and the "means" are laws enacted to effectuate those powers.

This conventional understanding of McCulloch has gained strength and acceptance through repetition, and it has become the classical framework for determining the scope of congressional power. That framework is flawed because it errs in treating the enumerated powers as separate and distinct, and it cannot explain the validity of substantial and concededly valid exercises of legislative power and, paradoxically, of the decision in McCulloch itself.

This Article presents a "new" theory of national and congressional power. i use quotation marks advisedly: this theory is new in the sense of resting on a textual, structural, and historical construction of the Constitution that is original in the literature. But this theory is actually quite old, having antecedents in pre-constitutional jurisprudence and the writings of Alexander Hamilton that so heavily influenced the Marshall Court. Instead of concentrating on specific enumerated powers, the doctrine advanced in this Article posits that the Constitution vests four aggregate powers in the government of the United States as a whole- providing for the common defense, preventing and resolving national and interstate conflicts, conducting foreign affairs, and creating and maintaining an economic union. Each of those aggregate powers, whose whole is greater than the sum of its parts, represents the legitimate "ends" of national power. Under the Necessary and Proper Clause,4 Congress is authorized to select all appropriate "means" that are designed to carry out those aggregate powers.

The theory presented in this Article represents a different way of construing and applying the constitutional grants of enumerated and implied powers in all three branches of the national government. This framework rejects the now conventional model's arbitrary limits on the scope of congressional power. It explains the validity of otherwise anomalous national powers and provides a new reading of McCulloch that focuses on how, specifically, the Court upheld the constitutionality of the Bank of the United States. And, being centered on four clusters of power essential to union, it provides an alternative, grounded in federalism, to essentially indeterminate theories of a national regulatory power (or a general welfare power) that are advanced by scholars who have criticized limitations of the classical model.

The structure of this Article and a summary of my contentions are as follows: Part I of the Article examines a number of national powers that appear inconsistent with the classical framework-the general national powers over foreign affairs, immigration and deportation, recognition, passports, paper money as legal tender for all public and private debts, the inherent power of each House of Congress to adjudicate and punish non-members for contempt, the inherent power of the United States, without enabling legislation, to enter into contracts and sue for breach, and expansions of federal court jurisdiction beyond the enumerated Article Ill categories. …

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