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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. 243

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