Publication Title
George Washington Law Review
Volume
93
Page
1196
Year
2025
Abstract
The Necessary and Proper Clause authorizes Congress to establish and shape the administrative state. But the Necessary and Proper 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 Necessary and Proper 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 Consumer Financial Protection Bureau’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 are constitutional under the Necessary and Proper Clause. This Article does not seek to resolve definitively how the Court’s recent cases should have come out under the Necessary and Proper Clause, but rather seeks to center the Necessary and Proper 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.
Recommended Citation
Ilan Wurman, The Necessary and Proper Clause and the Law of Administration, 93 Geo. Wash. L. Rev. 1196 (2025), available at https://scholarship.law.umn.edu/faculty_articles/1150.
Rights
http://rightsstatements.org/vocab/InC/1.0/
