Article V Legislative Compendium

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§ 3.9.4. The Necessary and Proper Clause Does Not Authorize Congress to Structure the Convention.

The Necessary and Proper Clause appears in Article I, Section 8 at the end of an (incomplete) list of congressional powers. It reads:

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.1) #U.S. Const. art. I, § 8, cl. 18.

In 1963, Yale University law professor Charles Black wrote an article fiercely opposing the application-and-convention procedure.2) #Charles L. Black, Jr., The Proposed Amendment of Article V: A Threatened Disaster, 72 Yale L.J. 957 (1963). Without doing much research on the matter, Black argued that upon receipt of sufficient applications Congress could employ the Necessary and Proper Clause to structure the convention as it pleased.3) #Professor Black may have been encouraged by the Supreme Court’s use of the Clause in expanding the Commerce Power. However, the Court generally has not applied the Clause that way in other contexts. In 1967 and twice thereafter, Senator Sam Ervin (D-N.C.), who professed himself a friend to the process, introduced legislation by which Congress would have fixed the method by which states adopt applications, prescribed how long they would last, dictated the procedure for selecting delegates, apportioned those delegates among the states, and imposed rules upon the convention, including the margin of votes necessary for making decisions.4) #Sam J. Ervin, Jr., Proposed Legislation to Implement the Convention Method of Amending the Constitution, 66 Mich. L. Rev. 875 (1967). From time to time, members of Congress have introduced similar bills. None has passed.5) #See Thomas H. Neale, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress (Cong. Research Serv., Mar. 7, 2014) (discussing these efforts).

Reliance on the Necessary and Proper Clause to justify bills of this kind assumes a certain stupidity on the part of the Constitution's Framers: that is, it assumes that the Framers drafted the Necessary and Proper Clause broadly enough to enable Congress to control a process designed to circumvent itself. In fact, the Framers did no such thing. Such bills are unconstitutional for at least three reasons.

First, the Necessary and Proper Clause does not apply to Article V. By its terms, it applies only to powers listed in Article I, Section 8 (which are not pertinent to Article V) and to powers vested (1) in the “Government of the United States” and (2) in “Departments” and “Officers” of that government

As pointed out earlier, when Congress, state legislatures, and conventions act in the amendment process, they do so not as “Department[s]” of government, but as ad hoc assemblies.6) #See supra §§ 3.6, 3.7. Indeed, Article V is only one of several provisions in the Constitution that delegates tasks to persons or entities that do not act as agents of the U.S. Government. For example, Article I, Section 2 confers authority on state governors to issue writs of election to fill vacancies in the House of Representatives. Article I, Section 4 grants to state legislatures authority to regulate congressional elections. Before the Seventeenth Amendment, Article I, Section 3 empowered state legislatures to elect U.S. Senators. Article II, Section 1, coupled with the Twelfth Amendment, empowers the electoral college to select the President. By its wording, the Necessary and Proper Clause does not extend to such independent actors.

To be sure, all of these persons and entities receive their authority from the Constitution and therefore are said to exercise “federal functions.”7) # See section 3.6; see also Ray v. Blair, 343 U.S. 214 (1952). But exercise of a federal function does not render an independent actor part of, or an agent of, the U.S. Government.8) # Ray, supra, 343 U.S. at 224-25 (“The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority of the state that in turn receives its authority from the federal constitution.”)

For this reason the Necessary and Proper Clause does not encompass the independent assemblies empowered by Article V, even if, like Congress, they serve as part of government when acting in other capacities.9) # The non-applicability of the Necessary and Proper Clause help explains why the Times, Places and Manner Clause (also called the Elections Clause) includes a specific term permitting Congress to act in the area. U.S. Const., art. I, § 4, cl. 1. Another grant of power to Congress to act in an independent capacity—that is, outside its normal role as the legislature of the U.S. Government—is U.S. Const., amend. XII (providing for the Senate and House of Representatives to serve as witnesses to the count of electoral votes in presidential elections).

Second, even if the Necessary and Proper Clause did encompass those assemblies, the Clause would not be broad enough to enable Congress to structure the convention. The Necessary and Proper Clause does not actually grant any authority: it is a rule of interpretation designed to tell the reader that, unlike the Articles of Confederation, the Constitution conveys incidental powers to Congress.10) #See generally Robert G. Natelson, The Framing and Adoption of the Necessary and Proper Clause, in Gary Lawson, Geoffrey P. Miller, Robert G. Natelson & Guy I. Seidman, The Origins of the Necessary and Proper Clause 84, 97–101 (2010) (discussing the adoption and meaning of the Clause); Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591 (2012) (quoting James Madison for the proposition that “the Clause is ‘merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant.’”) (alteration in original). Yet powers incidental to the call are quite limited.11) #See supra § 3.9.3. Indeed, it could hardly be otherwise. The Ervin bills would have changed a state-driven process into one in which Congress intruded at the application stage and completely muscled out the state legislatures at the convention stage. No power may be incidental to an express provision that contradicts the basic purpose of its principal.11)

Third, a line of twentieth century cases holds that government legislation cannot control the amendment process.12) #See supra note 70; see also Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975) (Stevens, J.).

Such considerations strongly suggest that the courts would not permit Congress to interfere in the way contemplated by the Ervin bills. However, history suggests that litigation on the subject is unlikely. When Congress designated state conventions as the ratifying mechanism for the Twenty-First Amendment, some people suggested that Congress structure the ratifying conventions. Amid widespread objection that this was outside congressional authority or at least impractical, Congress left the task to the states, which managed the chore themselves.13) #Everett Somerville Brown, The Ratification of the Twenty-First Amendment, 29 Am. Pol. Sci. Rev. 1005 (1935). This precedent, coupled with Congress's repeated failure over several decades to adopt the Ervin bills or comparable measures, implies that the states will be left free to constitute an amendments convention as they choose.

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