• Home
  • About

walshslaw

perspectives on law, from Richmond VA

Feeds:
Posts
Comments
« A precedent for excising the heart while leaving the rest of the body standing?
Split Fourth Circuit panel vacates removal order based on Chevron step-one determination about section 212(h) of the INA »

Please don’t Boerne-ize the Necessary & Proper Clause

March 29, 2012 by Kevin C. Walsh

The Supreme Court has had a hard time improving on Chief Justice Marshall’s McCulloch v. Maryland formulation of the doctrinal test for Congress’s power under the Necessary and Proper Clause. At one point in time, the Court even adopted that formulation as its test for the reach of Congress’s power under Section 5 of the Fourteenth Amendment. In City of Boerne v. Flores, however, the Court tried to do better in its Section 5 jurisprudence. That was a mistake. Boerne‘s congruence and proportionality test is a “flabby test” that is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” as Justice Scalia reiterated in a solo concurrence just last week.

Based on this week’s oral arguments on the constitutionality of the “individual mandate,” at least some of the Justices appear willing to formulate a new doctrinal test for what counts as a “Proper” law under the Necessary and Proper Clause. As they were in Boerne, the Justices are on a search for a limiting principle on Congress’s power. In their attempt to not Garcia–ize the Commerce Clause and the Necessary and Proper Clause, let us hope that they do not Boerne-ize those powers instead.

Advertisements

Share this:

  • Share
  • Email
  • Twitter
  • Facebook
  • Google
  • Print
  • Reddit
  • LinkedIn

Like this:

Like Loading...

Related

Posted in Law | Tagged Boerne, City of Boerne v. Flores, Commerce Clause, Garcia, health care reform, individual mandate, McCulloch v. Maryland, Necessary and Proper Clause, Scalia |

  • Twitter Feed

    • @potus @realDonaldTrump can get his name in the history books by championing the Melania Trump Amendment (AKA the "… twitter.com/i/web/status/9… 17 hours ago
    Follow @kevincwalsh
  • Archives

    • August 2014
    • July 2014
    • April 2014
    • October 2013
    • September 2013
    • August 2013
    • July 2013
    • June 2013
    • May 2013
    • April 2013
    • March 2013
    • February 2013
    • January 2013
    • December 2012
    • November 2012
    • October 2012
    • September 2012
    • August 2012
    • July 2012
    • June 2012
    • May 2012
    • April 2012
    • March 2012
    • February 2012
    • January 2012
    • December 2011
    • November 2011
    • October 2011
    • September 2011
    • August 2011
    • July 2011
    • June 2011
    • May 2011
  • Categories

    • Catholic
    • Fourth Circuit
    • Law
    • News
  • Pages

    • About
  • Popular Tags

    5000A abortion ACA ACCA Affordable Care Act Agee amicus curiae Anti-Injunction Act Baltimore Catholic class action conspiracy contraception contraceptives mandate Cuccinelli Davis Diaz DOMA Duncan en banc Establishment Clause evidence facial challenge First Amendment Floyd FOIA Fourth Amendment Fourth Circuit Free Exercise Gregory habeas corpus Hamilton HCR healthcare health care healthcare reform health care reform HHS HHS mandate immigration individual mandate interlocutory appeal John Marshall jurisdiction Keenan Keith Kennedy King Lawrence v. Texas Motz Niemeyer partial unconstitutionality piracy preemption religious liberty RFRA Richmond Same-sex marriage Scalia Second Amendment Section 5000A sentencing severability Shedd Sixth Circuit standing suppression Supreme Court Third Circuit Traxler USCCB Virginia Virginia v. Sebelius Wilkinson Wynn
  • Advertisements

Create a free website or blog at WordPress.com.

WPThemes.


loading Cancel
Post was not sent - check your email addresses!
Email check failed, please try again
Sorry, your blog cannot share posts by email.
%d bloggers like this: