The Corporate Law Background of the Necessary and Proper Clause

NYU School of Law, Public Law Research Paper No. 09-57

George Washington Law Review, Vol. 79, p. 1, 2010

37 Pages Posted: 29 Oct 2009 Last revised: 27 May 2010

Geoffrey P. Miller

New York University School of Law

Date Written: October 27, 2009

Abstract

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.

Suggested Citation

Miller, Geoffrey P., The Corporate Law Background of the Necessary and Proper Clause (October 27, 2009). George Washington Law Review, Vol. 79, p. 1, 2010. Available at SSRN: https://ssrn.com/abstract=1495014 or http://dx.doi.org/10.2139/ssrn.1495014

Geoffrey P. Miller (Contact Author)

New York University School of Law ( email )

Center for the Study of Central Banks
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New York, NY 10012-1099
United States
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