The Corporate Law Background of the Necessary and Proper Clause
Geoffrey P. Miller
New York University School of Law
October 27, 2009
NYU School of Law, Public Law Research Paper No. 09-57
George Washington Law Review, Vol. 79, p. 1, 2010
This paper investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early federal period bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these corporate charters suggests that the Necessary and Proper Clause does not create independent lawmaking competence; does not confer general legislative power; does not grant Congress unilateral discretion to determine the scope of its authority; requires that there be a reasonably close connection between constitutionally recognized ends and the legislative means chosen to accomplish those ends; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others.
Number of Pages in PDF File: 37working papers series
Date posted: October 29, 2009 ; Last revised: May 27, 2010
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