The Future of Federalism: A Uniform Theory of Rights and Powers for the Necessary and Proper Clause

80 Pages Posted: 23 Jun 2016

Date Written: April 1, 2013


This Note proposes a new interpretive theory for the Necessary & Proper Clause and offers an internally limited, uniform approach to adjudicating individual rights and state powers. With respect to the latter, the theory recognizes that there is no clear demarcation between national and state functions and attempts to avoid the folly of reading such substantive details into the question of constitutionality itself. As Marshall noted from the outset of this endeavor: The Constitution “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. . . In considering this question, then, we must never forget that it is a constitution we are expounding.” Any theory of federalism must remain flexible and adaptable to changing circumstances.

The theory puts forward a three-part test to determine whether a law is viable under the Necessary & Proper Clause. The three-part test consists of an ends inquiry, a necessity inquiry, and a two-prong propriety inquiry. First, the ends inquiry explores whether an act of Congress utilizes an implied power (which supports the exercise of an adjoining power) or an inherent power (which merely executes or details a pre-existing power), and — in the case of an implied power — whether the implied power engages the inherent execution of an enumerated power to attain a legitimate government interest. Second, the necessity inquiry explores whether a reasonable person could find that the power adopted furthers the inherent execution of an enumerated power (or whether congressional findings could lead a reasonable person to find such a connection). Third, the propriety inquiry examines whether the use of federal power encroaches upon individual rights or state powers, utilizing a uniform tri-tiered framework for evaluating the level of infringement upon either liberty interest.

The individual rights prong asks whether the exercise of power encroaches upon an enumerated right (and must pass strict scrutiny review), an unenumerated right (and must pass undue burden review), or wrongful conduct that infringes upon the rights of others (and must pass rational basis review). The state powers prong asks whether the exercise of federal power is an inherent exercise of enumerated power (and must pass rational relation review), an exercise of implied power compatible with concurrent state power (and thus passes undue burden review), or an exercise of implied power that preempts concurrent state power (and must pass strict scrutiny review).

Under this framework, all federal laws must satisfy the ends inquiry and the necessity inquiry in order to be facially constitutional. Under the propriety inquiry, an exercise of federal power may be unconstitutional as applied to a particular situation (under the individual rights prong), or may be unconstitutional as applied to a particular state (under the state powers prong).

This approach is grounded in the text of the Constitution, meaningfully explains divergent Supreme Court precedents, and proposes judicially administrable tests with which the Court is already familiar. The theory would, hopefully, result in a uniform system of rights and powers that respects the foundation, function, and future of federalism in the United States.

Suggested Citation

Parsons, G. Michael, The Future of Federalism: A Uniform Theory of Rights and Powers for the Necessary and Proper Clause (April 1, 2013). 11 Geo. J.L. & Pub. Pol'y 177 (2013), Available at SSRN:

G. Michael Parsons (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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