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The "Rational Federalist": Synthesizing Necessity And Propriety In The Sweeping Clause, Shane Magnetti
The "Rational Federalist": Synthesizing Necessity And Propriety In The Sweeping Clause, Shane Magnetti
St. John's Law Review
(Excerpt)
This Note will argue that flexibility as to what constitutes a “necessary” law combined with a rigid standard for what makes a law “proper” enables Congress to execute its enumerated powers without overreaching. Part I outlines differing scholarly theories as to the legal origins of the Necessary and Proper Clause. Sections A, B, and C outline the theories that the Clause stems from principles of agency law, administrative law, and corporate law, respectively. Section D examines the implied powers theory of the Clause’s genesis. Next, Part II examines the Supreme Court’s early Necessary and Proper Clause jurisprudence—namely McCulloch v. …