David Loudon


This Article discusses the interplay between the Necessary and Proper Clause and the Commerce Clause, particularly in light of the landmark decision of National Federation of Independent Business v. Sebelius. First, this Article reviews the historical interaction between the two clauses, discussing the instances in which the two may have been considered together, and introducing the Supreme Court jurisprudence of each clause, setting the legal landscape for the NFIB v. Sebelius decision. Next, this Article details the three opinions from the NFIB v. Sebelius decision, Chief Justice Roberts’ holding, the joint concurrence, and Justice Ginsberg’s dissent, specifically as they relate to the interaction between the Commerce Clause and the Necessary and Proper clause. This Article continues by exploring the different theories of constitutional interpretation reflected in the three NFIB v. Sebelius opinions. Finally, this Article concludes by proposing a “Means-Ends Framework” to govern the relationship between the two clauses. This framework proposes that a federal regulation of intrastate activity is only permissible when it serves as a means to an effective regulation of interstate commerce, and not as additional end that is outside of Congress’s enumerated powers.



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