Here is a passage from casebook p. 172 that I would like you to think about:
The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Art. I, §8, cl. 18. We have long read this provision to give Congress great latitude in exercising its powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch, 4 Wheat., at 421.
Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883).
Do you think the Court should read the enumerated powers so permissively by bending over backwards to demonstrate "proper respect" for Congress? If Congress wins and gains power, who is on the losing end of this distribution of power?
One more passage: "This case concerns...powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to a police power."
So, which is it? Do we read the powers of Congress permissively or carefully? How does necessary and proper fit in this paradox?
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