The Necessary and Proper Clause and the Law of Administration

Abstract

The Necessary and Proper Clause is what authorizes Congress to establish and shape the administrative state. But the clause is rarely cited in the relevant Supreme Court opinions or litigant briefs. This is a mistake. In several of the Court’s recent prominent cases, the clause’s meaning and effect could have been dispositive. This Article makes that case. It demonstrates that there are plausible arguments against the Supreme Court’s removal and Seventh Amendment jurisprudence as they relate to public administration, though this Article takes no strong position on those arguments. The Court recently and correctly held, on the other hand, that the CFPB’s funding structure does not violate the Appropriations Clause. But even if Article II’s Vesting Clause, the Seventh Amendment, and the Appropriations Clause do not get in the way of Congress’s relevant statutes, it does not follow that those statutes would be constitutional under the Necessary and Proper Clause. This Article does not seek to resolve definitively how the Court’s recent cases should come out under that clause, but rather to center the clause as an important source of authority—and limits—on Congress’s power to structure administration. It further offers a framework in which the Court’s emphasis on history and tradition might be both relevant and more disciplined.