A Modern Fiduciary Theory of the Necessary & Proper Clause

37 Pages Posted: 2 Mar 2012 Last revised: 23 Aug 2012

Date Written: August 21, 2012


Buried in Chief Justice Roberts’ recent landmark opinion upholding the constitutionality of the Affordable Care Act under the tax power is a brief discussion indicating that the Necessary and Proper Clause cannot justify the Act’s individual insurance mandate. But the Chief Justice breezed through this important argument without any overriding theory, in a manner Justice Ginsburg suggested would inevitably “disserve future courts.” In the process, Roberts hastily distinguished the Court’s recent decision in United States v. Comstock, which offered a substantial — if ambiguous — rethinking of the Necessary and Proper Clause, for perhaps the first time since McCulloch v. Maryland.

This Article seeks to bring clarity back to Necessary and Proper Clause jurisprudence, by offering a new originalist account of the Clause. Underlying the Court’s Comstock decision are two puzzles. First, there is a puzzle on the surface of the opinion as to how to apply Justice Breyer’s novel five “considerations” in future cases, which this Article demonstrates has already left lower courts — and seemingly the Supreme Court itself, in its Affordable Care Act decision—deeply confused. Second, Comstock brings back to the surface a deeper puzzle that has sat dormant in Necessary and Proper Clause jurisprudence from the beginning: the puzzle of what it really means for congressional legislation to be rationally related to an enumerated constitutional end. The Article seeks to solve both puzzles together by proposing a modern fiduciary theory of the Necessary and Proper Clause that provides meaning to Breyer’s considerations and clarifies the nature of a rational relation between legislated means and enumerated ends. After canvassing the range of possible means-end fit tests, the Article draws on newly uncovered history of the fiduciary and agency law roots of the Necessary and Proper Clause to argue that the most appropriate means-end test would ask whether Congress, in legislating, is acting as a proper fiduciary of the people of the United States, within the context of its enumerated powers.

Keywords: Affordable Care Act, Constitutional Law, Fiduciary, Necessary and Proper Clause, United States v. Comstock

Suggested Citation

Levitz, Philip, A Modern Fiduciary Theory of the Necessary & Proper Clause (August 21, 2012). Available at SSRN: https://ssrn.com/abstract=2014468 or http://dx.doi.org/10.2139/ssrn.2014468

Philip Levitz (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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