Balkinization  

Friday, February 17, 2006

The Horizontal Sweeping Clause

JB

A question recently asked on Conlawprof-- What gives the federal government power to create the Department of Education?-- offers me the opportunity to discuss a little known aspect of the U.S. Constitution.

To explain why Congress can create the Department of Education, you must first distinguish two questions: (1) What gives Congress the power to create any departments in the executive branch at all; and (2) What gives Congress the power to create the sort of laws that will be implemented by that department. The answer to (1) is the sweeping clause in its horizontal aspect, which gives Congress the power "[t]o 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.*" (emphasis added). We usually think about this clause in its vertical aspect, that is, how it divides power between the states and the federal government, but it is equally important in its horizontal aspect, in giving Congress power to create new executive departments. The "horizontal sweeping clause" is the source of Congress's power to create various administrative elements of the federal government above and beyond its powers to provide for an Army and Navy, and to create lower federal courts.

We know that the Constitution contemplates creation of executive departments from the opinions clause of Article II, section 2, which gives the President the power to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." Because the number of executive departments is not specified in the Constitution itself, Congress is given the power to create new ones (or abolish old ones).

The test for whether an exercise of the horizontal sweeping clause is constitutional is the test of McCulloch v. Maryland. This brings us to question (2). If the Constitution gives the federal government no powers at all in the field of education, then it would not be appropriate under the horizontal sweeping clause to create a department of education. However, because the Constitution gives Congress powers to regulate education under the taxing and spending clause (as well as the commerce clause to some extent) it may create an Executive department which implements laws which it passes dealing with education.

The horizontal sweeping clause is important for another reason: It helps us understand why Alexander Hamilton was right that the words "necessary and proper" do not mean "absolutely necessary" or "required" but rather "convenient," "helpful," or "appropriate," essentially the doctrine created in McCulloch v. Maryland. We ordinarily think of the Necessary and Proper Clause in terms of debates about federal power vis a vis the states, but the same words govern Congress's powers to set up the Executive and Judicial branches and to create new departments. The test for what Congress may do in setting up these departments cannot be whether doing so is necessary in the sense of "absolutely necessary" or "required." Rather, Congress must be given broad discretion in what departments it creates and now many, and how it divides up responsibilities between the various departments.

Since the words "necessary and proper" apply both to the clause's horizontal and vertical aspects, presumptively they have the same relatively broad meaning in both of these aspects. However, when the clause is invoked in its vertical aspect, it must also be read in conjunction with principles of federalism (which are articulated in the Tenth Amendment); when it is invoked in its horizontal aspect, it must be read in conjunction with principles of separation of powers.


Comments:

It's a nice explanation, but the reasoning behind it (which is the Court's, not yours) is quite silly. Education is not reasonably implicated by the commerce or taxing power.
 

"The Congress shall have power to lay and collect taxes . . . to . . . provide for the common defense and general welfare of the United States . . . ."

The Congress has the express power to tax and spend for the general welfare, which would of course include directing federal resources toward education.
 

Amicus, if the Necessary and Proper clause can be applied to anything purportedly for the "general welfare" it is a plenary grant of authority. Combine this with the Supremacy clause and federalism is completely disabled.

I'm not saying that you are mischaracterizing the jurisprudence. But I think this reasoning reduces to an absurdity.
 

The general welfare clause is not a grant of power; As many have pointed out before, reading it that way makes the whole structure of Article 1, section 8, with it's enumeration of specific powers, redundant.

Just as with the "necessary and proper" clause, it's a restriction on the exercise of federal powers granted by other clauses. Rather than being exercised in any way Congress pleases, they're only to be exercised for the general welfare.

Sorry, Balkin; You've ably described the jurisprudence, but the jurisprudence is nonsense on stilts.
 

First just a minor quibble. I thought the authority to establish inferior courts was directly granted to congress in the judiciary section.

Moving on I just don't see how one can critisize the courts on the deciscions we have been talking about here. Clearly, even under the most restrictive notion of federalism, congress can offer money to the states or schools in those states (so long as it isn't using its spending clause as a club to expand its powers). If the constitution doesn't allow congress to create an executive branch to oversee who gets this money what executie branches are they allowed to create?

Of course how far the US Gov has gone with their powers over education is another matter for another debate.
 

"Clearly, even under the most restrictive notion of federalism, congress can offer money to the states or schools in those states"

Not at all clear, if one takes enumerated power doctrine seriously. Tax the states until they can't afford to levy enough taxes themselves to carry out their own functions, and pass the loot onto them if they comply with unconstitutional demands, is a "work around" the founders would have despised.

Let's try, for a change, good faith compliance with the Constitution that all federal officers swear to follow.
 

The so-called originalists need a story of original sin and an original sinner to make their narrative go. The original sin apparently is McCulloch and the original sinner Marshall, or maybe Hamilton. Why some 21st century knight of the seminar room has a better claim to faithful originalism than folks who were, like, around at the time has always eluded me.
 

Not at all clear, if one takes enumerated power doctrine seriously. Tax the states until they can't afford to levy enough taxes themselves to carry out their own functions, and pass the loot onto them if they comply with unconstitutional demands, is a "work around" the founders would have despised.

Nonsense. The unconstitutional conditions doctrine would prevent the Congress from imposing unconstitutional demands upon the states. Nor is this likely to happen -- Congress is a popularly elected body, and no Congressperson would be reelected if they carried out their functions to such an absurd and ridiculous extent.

Try to remember that a lot of the Constitution's protections are structural. Indeed, that's why Madison thought a bill of rights was superfluous.

Giving a general power to tax and spend for the general welfare doesn't deenumerate other provisions. It gives Congress no power to punish individuals or substantively regulate State or individual conduct. It just allows Congress to promote federal policies through the relatively less invasive method of raising money (and the amount will be checked by the political process) and spending it.

Like it or not, that's the constitutional design. What you're proposing is anti-textual.
 

By an "unconstitutional demand", I mean a demand concerning a matter which the federal government has no grant of authority over. Not demands that the Constitution be violated. Since the spending authority only extends to spending to carry into effect the delegated powers, it can not constitutionally be used to bribe the states to do things outside the reach of federal power.
 

This potential concern was the reason I said "(so long as it isn't using its spending clause as a club to expand its powers)." I agree that the *use* of the spending clause to effectively force certain behaviors may be problematic. However, I don't think this would have even been an issue in the original constitutional framework. Before the income tax the federal goverment simply *couldn't* take the states money away and offer it back only if they did as told.

In either case the DOE is justified, though perhaps only as a trivial agency to hand out money *without* substantial strings.
 

Thank you very much for this information.

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