An Alternative Test for the Necessary and Proper Clause

Gerard N. Magliocca

The Administration's new vaccine mandate for private employers will surely be attacked in the courts. There will be a statutory challenge and a constitutional challenge. The constitutional challenge will be that the mandate runs afoul of the Chief Justice's controlling opinion in NFIB v. Sebelius, which reasoned that the individual health insurance mandate exceeded Congress's authority under the Commerce Clause and the Necessary and Proper Clause.

With this background in mind, I came across an interesting passage in John Marshall's biography of George Washington. (I'm interested in Life of Washington because it was a joint project between Marshall and Bushrod Washington, who served as Marshall's editor for the book series.) At one point, the Chief Justice writes about the 1791 congressional debate on creating the First Bank of the United States. Here is what he said (before he wrote McCulloch v. Maryland):

In asserting the authority of the legislature to pass the bill, gentlemen contended, that incidental as well as express powers must necessarily belong to every government: and that, when a power is delegated to effect particular objects, all the known and usual means of effecting them, must pass as incidental to it. To remove all doubt on this subject, the constitution of the United States had recognized the principle, by enabling congress to make all laws which may be necessary and proper for carrying into execution the powers vested in the government. They maintained the sound construction of this grant to be a recognition of an authority in the national legislature, to employ all the known and usual means for executing the powers vested in the government. Then they took a comprehensive view of those powers, and contended that a bank was a known and usual instrument by which several of them were exercised.

I do not know if Marshall was quoting members of Congress or characterizing the issue in his own way. Either way, though, I think that "known and usual means" is a more helpful test for analyzing incidental powers (especially in light of over two centuries of practice) than the more typical formulations. 

For example, the thrust of the Chief Justice 's opinion in Sebelius was that a mandate to buy health insurance was unusual--it was not a "known and usual means" for exercising the commerce power. The same could be said for a federal vaccination mandate on private employers, if you assume that OSHA even has that power under the relevant statute. And so on.