“Great” Powers and Federal Power Over Treaties

In my new article, Rethinking the Federal Eminent Domain Power, I begin by explaining a theory of the Necessary and Proper Clause that I call the idea of “great powers.” Put simply, the idea is that there are some powers that are sufficiently important that they cannot be implied through the Clause, even if they are otherwise useful for carrying out an enumerated power. Depending on your attitude toward textualism, you can either call this an implicit background understanding of the Clause, or you can call it an interpretation of the word “proper” — a power might be too great to be “proper” even if it is “necessary.”

I explain in the article that this idea has a strong historical pedigree. James Madison invoked it in his speech about the unconstitutionality of the national bank. And even the supporters of the bank, like Alexander Hamilton and John Marshall’s opinion in McCulloch v. Maryland, conceded the principle. As McCulloch puts it, there is a class of “great substantive and independent power[s] which cannot be implied as incidental to other powers or used as a means of executing them.”

The idea has also been getting play in the Court more recently. Chief Justice Roberts’s controlling opinion in NFIB v. Sebelius describes the individual mandate as a “great substantive and independent power” (quoting McCulloch), which is why it can’t be upheld under the Necessary and Proper Clause. Chief Justice Roberts returned to the language again in his separate opinion in United States v. Kebodeaux, where he said that “it is difficult to imagine a clearer example of such a ‘great substantive and independent power'” than the “police power.” That is, the Necessary and Proper Clause cannot be interpreted in such a way that would imply that the federal government had a police power.

Most recently, I was interested to see the idea come up again in the arguments in Bond v. United States. Bond’s brief invokes the “great substantive and independent powers” language (at p. 61). At oral argument, Chief Justice Roberts asked a series of questions about treaties and the “police power,” which were an allusion to his opinion in Kebodeaux. And Solicitor General Verrilli responded using similar language. He told the Court that:

the treaty power is itself a great and substantial independent power of the national government. And it is not constrained by a “too local” limitation. That is the lesson of the era of the framing, that there is not a “too local” limitation on the exercise of the treaty power.

I think the idea of “great powers” is extremely important to understanding the Necessary and Proper Clause, and it has generally been neglected. So I’m pleased to see the Court and the parties considering it. I’m not sure whether the chemical weapons statute in Bond does implicate that power, but I think it helps to illuminate the broader issues, including the relationship between the treaty power and the Necessary and Proper Clause.

One way to put Solicitor General Verrilli’s point is that the treaty power is extremely broad — it is itself a “great” power — so the Necessary and Proper Clause isn’t needed to do much work. If a treaty can grant the federal government the police power, then so too can the Necessary and Proper Clause, perhaps. The Clause isn’t being used to smuggle in a “great” power that the federal government would otherwise lack.

Contrariwise, if the treaty power can’t extend that broadly, then under the “great powers” idea, the Necessary and Proper Clause can’t either. While the Clause can be used to implement the enumerated powers with other “incidental” powers, it can’t be used to add “great” powers — like, perhaps, the police power — that are otherwise outside the federal government’s powers.

(If you want to hear me talk more about the idea of great powers, including the treaty power, I’ll be talking about my article today (Thursday) at Yale Law School — Noon, SLB 122.)