55 Case W. Res. L. Rev. 243 (2004-2005)
The Agency Law Origins of the Necessary and Proper Clause

handle is hein.journals/cwrlrv55 and id is 253 raw text is: ARTICLES
THE AGENCY LAW ORIGINS OF THE
NECESSARY AND PROPER CLAUSE
Robert G. Natelsont
The Congress shall have Power... To make all Laws which
shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in
any Department or Officer thereof.'
CONTENTS
I. INTRODUCTION
II. QUESTIONS ABOUT THE CLAUSE AND THE LIMITS OF TEXTUAL
ANALYSIS
A. Does the Necessary and Proper Clause Establish an Ob-
jective or Subjective Test of a Law's Validity?
B. Is the Clause a Grant, Limitation, or Recital of Power?
C. What is the Meaning of Necessary?
D. What is the Meaning of Proper?
E. What is the Meaning of and?
F. Summary: What We Have Learned and Not Learned From
Textual Analysis
III. DRAFTING THE NECESSARY AND PROPER CLAUSE
t Professor of Law, University of Montana; Senior Fellow, the Goldwater Institute; Sen-
ior Fellow in Constitutional Jurisprudence, the Independence Institute; President, Montana
Citizens for the Rule of Law.
I am grateful for the assistance of the following individuals:
For research assistance and tracking down a lot of old books: Stacey L. Gordon, Reference
Librarian, University of Montana School of Law;
For assistance in locating eighteenth century legal treatises: Cynthia Arkin, Biddle Law
Library, University of Pennsylvania Law School;
For review of the manuscript: Jeff Renz, Professor of Law, University of Montana; Jona-
than H. Adler, Associate Professor, Case Western Reserve University School of Law;
For secretarial assistance: Charlotte Wilmerton, University of Montana School of Law.
I U.S. CONST., Art. 1,  8, cl. 18.

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